The highest panel of judges on the joint United Nations-Cambodian government tribunal on crimes of the Khmer Rouge regime have cleared the way for a second trial of two top leaders of the Communist movement that devastated the country almost four decades ago. The new trial, completely separate from the earlier proceedings against the two men, will for the first time in the tribunal involve charges of genocide against ethnic and religious minorities.
The two top leaders to be tried for genocide, Nuon Chea, second in command in the Cambodian Communist movement to the notorious Pol Pot, and Khieu Samphan, the movement’s head of state, were convicted in October 2013 of crimes against humanity, including the forced movement of people and other charges under international criminal law.
On Aug. 7, as preparations for the genocide trial began, the two were given life sentences on the earlier charges, making them the highest-ranking Khmer Rouge figures to be brought to justice for crimes committed from 1975 to 1977, the first two years of Khmer Rouge rule. A lower-level Khmer Rouge official is serving a life sentence for his role as commander of the Tuol Sleng torture center in Phnom Penh, the Cambodian capital, and the “killing fields” outside the city.
On the new charge of genocide, investigators estimated that up to half a million ethnic Cham Muslims and about 20,000 ethnic Vietnamese living in Cambodia were the victims of mass targeted killings during the Khmer Rouge period. In international law, the crime of genocide is more narrowly defined than is often used in current nonlegal descriptions of the Khmer Rouge period.
While more than a million deaths in executions, forced labor and disease of hundreds of thousands of Cambodians under Khmer Rouge rule — many of them perceived to be middle-class enemies of the revolution — are often widely called genocide, these have not met the technical criteria for prosecution because they were not intentionally directed against a defined group, the Khmer people, the majority ethnic group in Cambodia. In Nazi Germany, for example, the intentional, specific targeting of Jews did fit the crime.
Under a 1948 international convention, genocide covers “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group.”
In the coming trial, according to documents from the Khmer Rouge tribunal — formally known as the Extraordinary Chambers in the Courts of Cambodia — the criminal charges to be considered include “the genocide of the Cham (and related religious persecution in the forced movement of the Cham minority) and the genocide of the Vietnamese” as well as the treatment of certain targeted Buddhist opponents.
Other charges cover the persecution of former pre-Khmer Rouge officials in several named locations and the practice of forced marriages and rape nationwide, particularly related to the forced marriages. The legacies of forced marriage have haunted many Cambodian families for decades, and rape as an act of aggression has been linked to ethnic cleansing — sullying the victims’ ethnicity — there and in numerous subsequent conflicts, such as those in Bosnia and Rwanda in the 1990s. It is a crime under the statute of the International Criminal Court.
The genocide trial of Nuon Chea, who is 88 years old and in poor health, and Khieu Samphan, who is 83, could last several years, and there is concern among Cambodians that they will not survive the proceedings. Pol Pot, the Khmer Rouge leader, died of natural causes in a Cambodian village in 1998.
Other Khmer Rouge leaders, who blended Western Communist ideology picked up by living and studying in Paris with Chinese Communist practices closer to home, devised a hellish brand of reductionist policies designed to reduce Cambodia to the Year Zero and rebuild it in a collection of totalitarian communes. Like Pol Pot, most of them have escaped justice. Ieng Sary, the international face of the Khmer Rouge as foreign minister, died in March 2013 at age 87. Ieng Thirith, who had the bizarrely cruel title of minister of social affairs, was declared mentally unfit for trial. She was the wife of Ieng Sary; her sister was married to Pol Pot, whose real name was Saloth Sar.
In 2010, in the first prosecution to be completed by the Cambodian tribunal, Kaing Guek Eav, known as Comrade Duch, who ran the Tuol Sleng prison in Phnom Penh, admitted to overseeing the torture and killing of thousands of people and was found guilty of crimes against humanity and sentenced to life in prison. He did not face genocide charges because victims were overwhelmingly other ethnic Khmer, among them Khmer Rouge figures thought by the paranoid leadership to be traitors. UN and UN-related tribunals do not employ the death penalty.
Barbara Crossette is the senior consulting editor and writer for PassBlue and the United Nations correspondent for The Nation. She is also a member of the Council on Foreign Relations. She has also contributed to the Oxford Handbook on the United Nations.
Previously, Crossette was the UN bureau chief for The New York Times from 1994 to 2001 and previously its chief correspondent in Southeast Asia and South Asia. She is the author of “So Close to Heaven: The Vanishing Buddhist Kingdoms of the Himalayas,” “The Great Hill Stations of Asia” and a Foreign Policy Association study, “India Changes Course,” in the Foreign Policy Association’s “Great Decisions 2015.”
Crossette won the George Polk award for her coverage in India of the assassination of Rajiv Gandhi in 1991 and the 2010 Shorenstein Prize for her writing on Asia.