The law of armed conflict is at times regarded as being of limited consequence in peaceful Singapore. Yet, we need only look to an ASEAN neighbour, just 2 hours away by flight, to be reminded of its importance. Between April 1975 and January 1979, more than 1.7 million Cambodians, or a quarter of the Cambodian population at that time, perished from starvation, overwork, disease, torture or execution at the hands of the Democratic Kampuchea regime (“the Khmer Rouge”). In 2001, a mixed criminal tribunal (“the Tribunal”) was established conjointly by the Royal Government of Cambodia (“RGC”) and the UN to prosecute senior Khmer Rouge leaders and those most responsible for these crimes. Last year, the Tribunal’s first pre-trial public hearing took place. Since then, 5 former senior Khmer Rouge leaders have been charged and provisionally detained pending their trials, which are scheduled to commence in October this year.
Why did the Khmer Rouge seek to indiscriminately exterminate so many of their fellow Cambodians? Why should the Khmer Rouge leaders be held to account now, almost 30 years after their crimes? Importantly, what lessons can we hope to learn from them?
[inset: A statue of Grandfather Metal Club, Ta T'bong Dike, welcomes visitors to the ECCC. In Khmer folklore Ta T'bong Dike is the courthouse enforcer of truth and justice.]
Khmer Rouge’s Bloody Legacy
As MM Lee Kuan Yew has observed, “[h]istory has been cruel to the Cambodians” . Amid widespread dissatisfaction with the ruling elite, the Khmer Rouge (or Red Cambodians), led by its Prime Minister Pol Pot, seized power in 1975, pledging to empower the Khmer “Old People” (poor peasants). But this revolutionary commitment soon gave way to Pol Pot’s fanatical brand of social engineering - a radical form of agrarian communism where the whole population had to work in collective farms or forced labour projects.
The Khmer Rouge abolished all pre-existing institutions, barred religion, exterminated perceived threats and forcibly evacuated the entire population of Phnom Penh to rural provinces to work on farms. They arrested former government officials, intellectuals, professionals and, according to some accounts, anyone who wore glasses, labeling them “New People”. These New People were separated from their families and most never returned. One of the Khmer Rouge’s mottos, in reference to the New People, was: "To keep you is no benefit. To destroy you is no loss".
Khmer Rouge soldiers were given the power to arbitrarily arrest and execute any person whom they believed was an enemy of the revolution. An enemy of the revolution, at that time, meant any person who challenged Khmer Rouge policies or was suspected of espionage. Many were falsely condemned and executed without trial. Indeed, there was no conception of due process. Next, Pol Pot turned on alleged enemies from the Khmer Rouge itself. Thousands of cadres and “New People” were arrested, detained, interrogated tortured and later executed at Toul Sleng, now known as the S-21 Detention Center. Less than a dozen persons are known to have survived the torture and cruel and inhuman treatment they were subjected to by the “Santebal”, a special branch of the Khmer Rouge which controlled S-21 and was responsible for interrogation.
The Khmer Rouge forces were finally toppled by the Vietnamese in 1979. Notwithstanding this, a bloody civil war erupted between the Khmer Rouge and the RGC, which lasted until 1998 and claimed several thousand more Cambodian lives.
Significance of Legal Accountability
It goes without saying that the Tribunal, tasked with holding the Khmer Rouge responsible for the loss of nearly 2 million lives, is long overdue. Despite first being conceived in the 1980s and formally raised by the RGC to the UN General Assembly in 1997, the Tribunal is a recent creation. Its establishment has been delayed over the years by Cold War politics, the competing interests of several states and painstaking negotiations among the UN, various member states, and the RGC.
[left: Svay Rieng Province 1983. Courtesy of the Documentation Centre of Cambodia]
The length of time that has transpired since the crimes were committed—longer than three decades, in some cases—far exceeds that for any comparable proceeding. The other hybrid tribunals (in East Timor, Kosovo, and Sierra Leone) have all taken place in the immediate aftermath of the conflicts which gave rise to them. The Cambodian Tribunal’s long delay complicates the challenge of evidence preservation—from human memory to chain of custody—so essential to proving guilt. It also threatens to deprive the court of its most obvious and significant defendants. Pol Pot died in 1998. His former Khmer Rouge colleagues (5 of whom have been provisionally detained pending trial) are aging fast.
But now that it is here, its potential should not be scuttled on the premise that it has come too late. The repeated failure of governments over the past century to halt genocide wherever it has emerged, even though they have had it within their power to act, has been rightly condemned. It would be no less damning to the cause of legal accountability for mass crimes—to frustrate the process and allow the principal architects of Cambodia’s genocide to escape a public trial, when the possibility of justice is finally within reach.
The passage of time has not diminished the impact of the Khmer Rouge regime on Cambodian society. A large portion of today’s Cambodian population has not only been directly subject to that harsh regime, but has also lost one or more of their relatives or friends, resulting in indirect material and psychological harm. These Cambodians desire and deserve to see an end to impunity and to see in evidence what happened during this tragic period of their history. That sentiment is now shared by the member states of the UN General Assembly which have recognized that that violations of Cambodian and international law during the Khmer Rouge period “continue to be matters of vitally important concern to the international community as a whole (and that) ensuring the accountability of individual perpetrators of grave human rights violations is one of the central elements of any effective remedy to victims of these crimes” .
Unique Features of the Khmer Rouge Tribunal
The Tribunal is unique in several respects. A number of factors distinguish it from other international or mixed criminal tribunals, but four stand out in underscoring its nature and identifying the challenges ahead.
First, the Tribunal is the first mixed tribunal in which international judges and prosecutors do not constitute a majority. The focus has been placed on Cambodia and its people. To a greater extent than with the other mixed tribunals, the RGC has sought to ensure that the Tribunal remains a domestic court within the Cambodian judicial system staffed primarily by Cambodians so as to provide full national participation in the trials, while at the same time applying international standards and including experienced international jurists. These trials will not be a remote process far away in The Hague in Europe, as is the case in other criminal tribunals such as the International Criminal Court (“ICC”) and the International Criminal Tribunal for the former Yugoslavia (“ICTY”). They will be held in Cambodia, conducted mainly in the Cambodian national language, Khmer, be reported by local media and, most significantly, will be open to participation by victims not just as witnesses or complainants, but in some cases as parties to these criminal proceedings.
Second, and related to the first factor, the Tribunal will apply international humanitarian law, which criminalizes war crimes, genocide and crimes against humanity (defined in the table below), in conjunction with Cambodian criminal law, which concern murder and other national crimes, thereby recognizing that both national and universal standards of justice were breached by the Khmer Rouge in 1975-1979. By having recourse to both legal systems, the Tribunal also demonstrates that it is not a ‘show-court’ eager to convict and punish, but one that can preserves due process of the law by ensuring that the defendants are afforded counsel of their choice, a fair and public trial, andthe presumption that they are innocent unless and until proven guilty on the evidence.
[inset: Parts of human skeletons found at the burial grounds after World War II. Source: Sook Ching]
Third, although several ordinary Khmer Rouge soldiers were deployed to commit heinous crimesduring the Khmer Rouge period, in the spirit of achieving national reconciliation, the RGC and the UN have decided that the Tribunal should limit prosecutions to the senior leaders of the Khmer Rouge who orchestrated, gave orders to commit or endorsed these crimes, as well as those most responsible for committing serious crimes, such as Duch, the former chief of S-21 and the Santebal. They are the ones who are regarded as being most culpable and will be tried by the Tribunal. Over the years, tens of thousands of ordinary Khmer Rouge soldiers have defected to the Government. The Tribunal will not prosecute every former member of Khmer Rouge or every person in the villages of Cambodia who may have committed crimes within its jurisdiction.
Fourth, unlike analogous mechanisms in other countries, the Tribunal is the only official venue in Cambodia where claims for truth and justice about Khmer Rouge crimes may be mediated. Apart from a limited exception in the early 1980s, no serious attempt has been made to establish a truth and reconciliation commission or similar process of structured, fact-based dialogue involving both government and civil society. Thus, whatever its imperfections, the Tribunal will serve as the exclusive vehicle for addressing the numerous expectations of Khmer Rouge victims and their loved ones. It is hoped that the trials will ease the burden that weighs on the survivors. The trials are also for the new generation - to educate Cambodia’s youth about the darkest chapter in their country’s history. By prosecuting the Khmer Rouge in fair and open trials and by punishing those most responsible, the Tribunal will strengthen our rule of law and serve as an example to people who disobey the law in Cambodia and to cruel regimes which breach international humanitarian law worldwide. If potential criminals and despots know that they will be held accountable, they may be deterred from perpetrating national and international crimes.
Drawing a Parallel with Singapore’s Past
Significantly, Cambodia’s tragic past is not as far removed from our own as we may like to believe. The Khmer Rouge’s atrocities are strikingly similar to the war crimes perpetrated during the Japanese invasion and occupation of Singapore in 1942-1945.
During this period, Singaporeans were systematically murdered, tortured and enslaved. Prisoners of War (POWs) were summarily executed. Just as the New People in Cambodia were denounced and eliminated without a shred of humanity, Japanese aggressors launched “Operation Sook Ching”, meaning "to purge" or "eliminate", in Singapore. This was an island-wide exercise to ferret out anti-Japanese elements amongst the local Chinese community and intelligentsia. Screening centers were set up all over Singapore. Most of them were situated in areas of large Chinese populous, such as Java Road, Arab Street, Telok Kurau, St. Joseph's Institution, and Chinatown. Those persons who were identified as traitors were taken to several places, including Punggol Beach, Changi Beach, Katong and Siglap, where they were all massacred and buried in mass graves. Operation Sook Ching alone is suspected to have claimed hundreds of lives.
In another instance commonly referred to as the “Double Tenth Incident”, the Japanese Military Police, or the “Kempetai”, arrested and tortured 57 civilians and civilian internees on suspicion of their involvement in a raid on Singapore Harbour that had been carried out by British forces. 6 Japanese ships were sunk, but none of those arrested and tortured had participated in the raid, nor had any knowledge of it. They were all forced to confess to treason and sabotage and maimed and/or executed, which mirrors the modus operandi of the Khmer Rouge Santebal who controlled S-21. After the war, Japanese officers who authorized ordered or were otherwise responsible for these war crimes and crimes against humanity committed against Singaporeans and POWs were prosecuted and punished in Singapore by military court martial.
Heinous atrocities were committed against Singaporeans and Singapore residents in locations around the island which are familiar to all of us and, ultimately, the perpetrators responsible for these crimes were held to account here.
Viewed from that perspective, the basis, process and goals of the Tribunal offer us the following valuable insight:
a) Grave breaches of humanitarian law do not only occur in far-flung countries, but have occurred in neighboring Cambodia, whose citizens continue to suffer from their horrendous impact to this day;
b) Cambodians’ desire for the Khmer Rouge to be brought to justice demonstrates the importance of legal accountability for mass crimes and knowing the truth as to what crimes were perpetrated and why;
c) International criminals must be held to account, not only for the sake of victims who deserve justice, but to deter other potential criminals;
d) Nonetheless, the need for legal accountability must be tempered with the need to protect the procedural rights of the defendants and ensure that other social goals, such as national reconciliation in a post-conflict situation, are not compromised;
e) Awesome military might and the power to influence hundreds of troops should always be exercised judiciously and never abused;
f) Under humanitarian law, military commanders may be held responsible for crimes which they authorized, knew (or ought to have known) their forces would commit, but did nothing to prevent;
g) It is essential to ensure that the rule of law and justice is always upheld and never replaced by its anti-thesis: i.e. the rule of chaos and fear, which can lead to senseless violence and bloodshed.
The trials of the Khmer Rouge before the Tribunal are scheduled to commence this year and should be closely watched. In addition to providing closure for the Cambodian people, they will serve as a symbol of legal accountability and the administration of humanitarian law in the region and a telling reminder that peace-building and the rule of law are the cornerstones of nationhood and must be our foremost imperatives.
 Lee Kuan Yew, From third world to first world, the Singapore story: 19652000, New York, 2000, p 328.
 Teeda Buttmam, Children of Cambodia's Killing Fields , Memoirs by Survivors, compiled by Dith Pran, Chapter 1, Yale University, 1997.
 Preamble, Resolution adopted by the General Assembly – The Khmer Rouge Trials, GA Res A/RES/57/228, 27, February 2003.
 See Lim Gek Hong, 1942- Sook Ching WWII, Vol.4, Issue 2, Pointer Journal of the SAF, 1999, available athttp://www.mindef.gov.sg/imindef/about_us/history/world_war2/v04n02_hist...
 See Alden Teo, 1943- Double Tenth Massacre, Vol.3, Issue 10, Pointer Journal of the SAF, 1999, available athttp://www.mindef.gov.sg/imindef/about_us/history/world_war2/v03n10_hist...