During a reign of terror lasting three years, eight months and twenty days, the Communist Party of Kampuchea murdered nearly one-third of the population of Cambodia. In 1979, a Vietnamese invasion brought Pol Pot's Khmer Rouge state of Democratic Kampuchea to an end. The stunned and starving survivors were left stumbling about a barren landscape littered with the ruins of their once-beautiful country. In terms of the proportion of the population killed, it was the largest single mass murder of the twentieth century.  

Yet, the authors of this incredible holocaust have avoided any legal consequences for the last twenty-three years. Now comfortably slipping into their retirement years, the surviving leaders of the Khmer Rouge regime enjoy the ill-gotten gains of the havoc they wrought, quietly entertaining their grandchildren in remote northwestern towns of Cambodia. But something is afoot which may disturb the tranquility of their twilight years though not so violently as they disturbed everyone else in Cambodia.

After four years of negotiations between the United Nations and the Cambodian government, on August 10, 2001, Cambodian King Norodom Sihanouk formally promulgated the "the "Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea." In theory, this law puts in place the structure necessary to bring to justice the Khmer Rouge perpetrators who carried out the Cambodian genocide between 1975 and 1979. The law would establish a unique "mixed" tribunal of Cambodian and international jurists, seated in Phnom Penh to judge the crimes of the Khmer Rouge regime. This law was the culmination a twenty-year long struggle by human rights activists to overcome geopolitical resistance to the enforcement of international humanitarian law in Cambodia, a struggle against powerful forces indeed.

The fierce resistance to genocide justice in Cambodia flowed from the great power triangular geopolitics of the late Cold War period. China's strong support of the Khmer Rouge regime had allowed it to develop a strategic salient against its regional rival, Vietnam. But when the Vietnamese overthrew the Khmer Rouge regime with Soviet support, the Chinese turned to their new global ally, the United States, to help resist this expansion of Soviet influence on China's southern flank. For the US, all of the stars were in alignment: by assisting the Khmer Rouge-dominated exile coalition, the US could simultaneously harry the periphery of the "Evil Empire," assist the Chinese in defending their traditional sphere of influence, reassure US regional allies such as Thailand who were worried about Vietnam's perceived expansionist aims and, least importantly from a strategic perspective but perhaps most satisfying to many in the US establishment, help create what came to be called "Vietnam's Vietnam."

Human rights activists faced an uphill struggle in this environment. In the early to mid-1980s, Greg Stanton's Cambodia Genocide Project sought to persuade the government of Australia to bring a case against the Khmer Rouge exile regime, the Coalition Government of Democratic Kampuchea (CGDK), before the International Court of Justice (ICJ). But ASEAN, the PRC and the US convinced Australia not to cooperate. [See Greg Stanton, "The Khmer Rouge Genocide and International Law," pp. 141-162 in Ben Kiernan, ed., Genocide and Democracy in Cambodia, New Haven: Yale University Southeast Asia Studies, 1993.]

In 1986, Hurst Hannum and David Hawk of the Cambodian Documentation Commission prepared a draft memorial outlining the case against the CGDK, and sought to induce a European country to bring a case before the ICJ. Again the effort was defeated by the broad international coalition backing the CGDK. [See Hurst Hannum, "International Law and the Cambodian Genocide: The Sounds of Silence," Human Rights Quarterly, 11 (1989) 82-138.]  

A Washington-based coalition of NGOs called the Campaign to Oppose the Return of the Khmer Rouge tried a new tactic beginning in 1992. Under the leadership of Craig Etcheson, the campaign sought the adoption of a law making it the policy of the United States to support efforts to bring the Khmer Rouge leadership to justice for genocide and crimes against humanity. This effort succeeded when President Clinton signed the Cambodian Genocide Justice Act (CGJA) in 1994.

The CGJA also provided funding for an international investigation of the Khmer Rouge, and Yale University's Cambodian Genocide Program (CGP) was selected to carry out the investigation, led by Ben Kiernan and Craig Etcheson. In turn, the CGP established the Documentation Center of Cambodia in Phnom Penh, and under the leadership of Youk Chhang, the Documentation Center has spearheaded the quest for genocide justice in Cambodia ever since. [For more detail on the CGP and the Documentation Center of Cambodia, see Craig Etcheson, Crimes of the Khmer Rouge: The Search for Peace and Justice in Cambodia, London: Mellen, forthcoming.]  

The Cambodian government cooperated extensively with the CGP and the Documentation Center's collection of evidence on the Khmer Rouge genocide. Spurred in part by the new policy of the United States, in part by the growing body of probative material gathered by the CGP, and in part by the new precedents of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY/R), the United Nations began to take an interest in the crimes of the Khmer Rouge. A request from Cambodian Co-Prime Ministers Norodom Ranariddh and Hun Sen in June 1997 for UN assistance in seeking genocide justice led to a formal inquiry by a UN Group of Experts. The Experts recommended to UN Secretary General Kofi Annan in February 1999 that the ICTY/R be cloned to create a chamber to hear charges against the Khmer Rouge. [See the "Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/135," by Ninian Stephen, Chairman, Rajsoomer Lallah, and Steven R. Ratner, 18 February 1999, presented as an annex to "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 A/53/850 and S/1999/231, 16 March 1999.]

By this time, however, the Cambodian government had defeated the Khmer Rouge through a combination of battlefield successes and a generous amnesty policy, and the top echelons of Khmer Rouge political leadership had surrendered to Prime Minister Hun Sen. Within Hun Sen's ruling Cambodian People's Party, opinion was mixed about whether or not to accept a UN-controlled international tribunal for the surviving Khmer Rouge leaders.  

There are at least three groupings in the ruling party who oppose a UN tribunal. The "nativists" oppose any UN involvement in a tribunal, reflecting an abiding revulsion at external interference in Cambodia's internal affairs; after nearly a century of French colonialism, Japanese occupation in World War II, the US intervention in the early 70s, the Vietnamese occupation of the 80s, and the UN peacekeeping mission of the early 90s, it is easy to understand why some Cambodians are jealously protective of Cambodia's sovereignty. The "rejectionists" oppose the idea of any tribunal at all on the grounds that it could be harmful to national reconciliation, and a threat to Cambodia's new-found security and stability. The "protectionists" oppose any international involvement in tribunal on the grounds that several important members of the ruling party have skeletons in their closets, and party elders are reluctant to sacrifice any core members over this issue.

There are also several groups in the ruling party who strongly support the idea of UN participation in a Khmer Rouge tribunal. These include the "internationalists," who understand that cooperation with the UN on the tribunal can bring many side benefits, from increased bilateral and multilateral aid to greater political credibility in regional fora such as ASEAN and global fora such as the UNGA. The "modernizers" look to the domestic political benefits of a well-conducted tribunal, including combating the Culture of Impunity, weeding out undesirable elements in the party, and providing a salutary example of an independent judiciary. Finally there are the "triumphalists," who view a full-scale, fully internationally legitimated tribunal as the final act of revenge against those who destroyed Cambodia's revolution and wrought so much havoc, as well as the final "proof" of the correctness of the party's perception of its own historical role.

Other political forces in Cambodia also share an ambivalent attitude toward the idea of a Khmer Rouge tribunal. The royalist FUNCINPEC party generally supports the notion of UN participation in a tribunal, but is dogged by memories of its alliance with the Khmer Rouge through the 1980s. The opposition Sam Rainsy Party has advocated a Khmer Rouge tribunal modeled on the ICTY/R, but often argues that Prime Minister Hun Sen should be brought before that tribunal. His Majesty King Norodom Sihanouk speaks publicly in support of the tribunal, but privately has expressed doubts that such an undertaking is the best expenditure of resources for impoverished Cambodia.  

Public opinion surveys suggest that a strong majority of ordinary Cambodian citizens favors a Khmer Rouge tribunal, even though Cambodia has no real history of justice in the first world sense. When one probes beneath the surface public attitudes in favor of a tribunal, however, what most often comes out is a desire for answers, for an explanation to the elusive question of "Why?" Why did Pol Pot do it? Why did we have to suffer so much? Why was our country destroyed by its own children? Under most circumstances, the adversarial format of criminal prosecution is not the best venue for finding answers to such questions, and indeed may raise more questions than it answers.

Despite these reservations, with the adoption of the Khmer Rouge tribunal law in Cambodia, it now appears that at least some Khmer Rouge leaders will be brought to trial. But it remains to be seen exactly what sort of tribunal it will be. The United Nations hopes to resume negotiations with the Cambodian government in October on the implementation of the tribunal law. The outcome of those negotiations will crucial in determining whether the UN will participate in the tribunal. Certain details of the tribunal law appear inconsistent with what the UN defines as "international standards" of justice.

Politics in the US will play an important role in this decision, as well. Some Republican foreign policy activists have recently spoken out against the Khmer Rouge tribunal as currently conceived. If this view prevails inside the Bush Administration, the resulting change in US policy could be decisive in pushing the UN to withdraw from the process. With or without the participation of the United Nations, however, the day draws near when the world will finally see some measure of justice for the historic crimes of the Khmer Rouge. 

[Ed. Note: web addresses-- for the Cambodia Genocide Program is www.yale.edu/cgp and for the Documentation Center of Cambodia is www.welcome.to/dccam