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Cambodia's challenge to human rights

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Title:
Cambodia's challenge to human rights towards a model of reconciliation
Creator:
Kim, Chanthan
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English
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63 leaves : ; 28 cm

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Subjects / Keywords:
Human rights -- Cambodia ( lcsh )
Reconciliation ( lcsh )
Human rights ( fast )
Reconciliation ( fast )
Social conditions ( fast )
Social conditions -- Cambodia ( lcsh )
Cambodia ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Bibliography:
Includes bibliographical references (leaves 59-63).
General Note:
Department of Political Science
Statement of Responsibility:
by Chanthan Kim.

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University of Colorado Denver
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Auraria Library
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ocm51775327
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LD1190.L64 2002m .K55 ( lcc )

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Full Text
CAMBODIAS CHALLENGE TO HUMAN RIGHTS:
TOWARDS A MODEL OF
RECONCILIATION
by
Chanthan Kim
B.A., University of Colorado at Denver, 1998
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Political Science
2002


This thesis for the Master of Arts
degree by
Chanthan Kim
has been approved
by


Kim, Chanthan (M.A., Political Science)
Cambodias Challenge to Human Rights: Towards a Model of Reconciliation
Thesis directed by Associate Professor Steve Thomas
ABSTRACT
This thesis seeks to explore the dilemma between peace and justice, between
reconciliation and punishment, and the challenges to Cambodia to promote and
protect vital human rights interests, while still being flexible enough to
accommodate the needs of Cambodians. Through the research of two case studies,
the South African Truth and Reconciliation Commission and the Nuremberg Trials,
I propose to find a solution for Cambodia, emerging from the aftermath of mass
violence and genocide to overcome its recent serious human rights violations, and
trying to create a functioning state where the law and human rights are respected.
The literature review section examines the general view on how to protect and
promote human rights in countries that have experienced massive human rights.
The Truth and Reconciliation Commission and the Nuremberg Trials are two cases
that are considered the models to help countries overcome human rights violations.
To understand the importance of these two cases, detailed research was completed
on the South African Truth and Reconciliation Commission and the Nuremberg
Trial. It was discovered that both models serve the needs of Cambodia reasonably
well. This is true in that the Truth and Reconciliation Commission encouraged the
truth of the past to be collectively shared and acknowledged by both the victims and
the perpetrators. This was also true in the Nuremberg case because the trials
promoted individual accountability, which helped to create a culture that respected
the rule of law.
111


Finally, solutions addressing the problems of Cambodias human rights were
discussed, such as combining the Truth Commission and the Nuremberg Trials to
promote a new culture that will not only respects human rights, but one that also
respects the rule of law.
This abstract accurately represents the content of the candidates thesis. I
recommend its publication.
Signed
Steve Thomas


DEDICATION
I dedicate this thesis to my parents for their unfaltering understanding and
support while I was writing this. I want to thank you both for all the love
that you have given me. Thank you for everything.


ACKNOWLEDGMENT
I want to thank my advisor, Steve Thomas, for all his patience and
his helpfulness with me for these past few semesters. Thank you so much
for understanding how important this topic was for me.
I want to thank all my professors, Steve Thomas, Glenn Morris, Lucy
McGuffey, Anna Sampaio, and Amin Kazak, for sharing their time and
knowledge with me. Each of their classes has helped me not only broaden
my horizon, but also help develop my critical thinking skills for which I will
be forever grateful.
I also want to thank Phearum Chin, my Cambodian friend and
advisor, for all of his support throughout these two years. Thank you for
helping me to understand the differences between the two cultures. Thanks
again for all of the debates.


CONTENTS
CHAPTER
1. INTRODUCTION..........................................1
Literature Review..................................4
Outline...........................................13
Conclusion........................................15
2. CAMBODIAS CHALLENGE TO HUMAN RIGHTS.................17
The Past..........................................17
1950-1969......................................17
1970-1975......................................19
1975-1979......................................20
The Present.......................................21
Conclusion........................................25
3. SOUTH AFRICAN TRC....................................28
History...........................................28
Lessons Learned...................................32
4. NUREMBERG TRIALS.....................................36
History...........................................36
Lessons Learned...................................39
5. THE CAMBODIAN CONTEXT................................43
Vll


International View
43
Cambodian View.............................46
6. CONCLUSION...................................52
BIBLIOGRAPHY.........................................59
viii


CHAPTER 1
INTRODUCTION
Since the late 1990s, Cambodia has been struggling over the question of
whether Khmer Rouge (KR) top officials should be brought to justice for crimes
against humanity during their rule in the 1970s, (from 1975-79, Pol Pots Khmer
Rouge had killed 2 million people, a fifth of Cambodias population, through
executions, starvations, and forced labor) or follow the example of South Africa and
concentrate on peace and reconciliation instead. The United Nations and other
players in the international community believe that an international tribunal (like
Nuremberg) is the answer to bring justice to those involved in the Cambodian war
atrocities and genocide. For many leaders of Cambodia, however, reconciliation
and economic growth are seen as the answer to dealing with Cambodias oppressive
past. But for many of the Cambodian people, they believe that a trial would be the
best answer.
At present, there is no longer a threat from the Khmer Rouge, and yet, a
number of problems still loom on the horizon. The Cambodian government is beset
by corruption, and human rights groups have noted several incidents of severe
abuses, including assassinations and torture by government forces. The lack of
democratic tradition weighs very heavily on the Hun Sen government. For thirty
years, Cambodia was embroiled in one form of conflict or another; the legacy of the
last three decades is that Cambodias infrastructure has been devastated. Cambodia
1


now is not the Cambodia of the past, but it is a state living under the Westphalian
system of sovereign states. Cambodias leaders want to be respected as a sovereign
state within the international system; they want to process the issues of the Khmer
Rouge in their own fashion.
For Cambodia, state building has been an extremely complex and arduous
process that encompasses both a cultural and a political context in which human
rights remains a challenge. What steps could Cambodia take to overcome its human
rights challenges? Presently, there are many options available that can be used to
approach Cambodias particular circumstances. For instance, Cambodia could
choose to follow in the steps of Allied leaders after World War n, and put on trial
those who committed crimes against humanity. The Nuremberg trials had set a
precedent where individuals are held accountable for crimes they have committed.
Leaders of the Khmer Rouge could go through a Nuremberg type trial, here after
referred to as the Khmer Rouge Tribunal, where individuals would be put on trial
for the crimes which they committed during 1975-79. The Khmer Rouge Tribunal
could then prosecute human rights violations of the past, serving as a deterrent to
future violations.
If Cambodia were to conduct a Khmer Rouge Tribunal, would the
accomplishment of the ad hoc tribunal be strong enough to ensure deterrence of
future atrocities in Cambodia? For Aryeh Neier,1 a tribunals ability to deter future
crimes against humanity is unlikely. Exposing of past crimes also poses further
2


questions, because there would need to be a reaction as how to respond to those who
have committed the crimes. Should they be prosecuted and punished, or should the
state accord them amnesty in an effort to reconcile prior differences and begin
anew?
Alternately, leaders of Cambodia could follow the same path as South
Africa and set up a truth and reconciliation commission. With a truth commission,
victims are able to confront those who have violated their human rights in the past.
Through the commission, victims and perpetrators have the chance to have open
dialogue. A Cambodian Truth and Reconciliation Commission could be used as a
tool to unify the nation; enemies and strangers could share in the same history of
sorrow, of pain, of loneliness, of a national identity, to help in the process of healing
Cambodia.
In my research, I seek to explore the dilemma between peace and justice,
between reconciliation and punishment, and the challenge to Cambodia to promote
and protect vital human rights interests, while still being flexible enough to
accommodate the needs of Cambodians. The research will be based on two case
studies: the South African Truth and Reconciliation Commission, and the
Nuremberg Trials.
The South African Truth and Reconciliation Commission case study focuses
on the reconciliation and reconstruction period of 1995 to the present. The case
study will focus on the decisions that the leaders of South Africa chose in promoting
3


a better South Africa and the impact that the Commission had in promoting human
rights and how it applies to the situation in Cambodia. The South African case
study will be used as an evaluation tool to help guide Cambodia to paths of national
reconstruction.
The Nuremberg case study will also be used as a tool to help human rights
issues in Cambodia. In the case study, I will focus on the two different trials, taking
into detail the topic of individualizing guilt as a deterrent of future human rights
violations.
Through the assessment of the two case studies, I propose to find a solution
for Cambodia, emerging from the aftermath of mass violence and genocide to
overcome its recent serious human rights violations, and to create a functioning state
where the law and human rights are respected. Through the process of my research,
I hope to find answers to help guide the process of bringing the Khmer Rouge to
justice. By comparing the two different case studies, I intend to show why
Nuremberg and the South African Truth and Reconciliation Commission might be
useful to Cambodia to address its human rights issues of past, present, and future.
Literature Review
After years of civil war, Cambodians are presently faced with how to deal
with their recent past. Not only do the leaders need to confront the issues of how to
achieve justice in cases of gross human rights violations, but they also must deal
4


/
with the issue that has plagued the country for twenty years, how to create a
democratic state that is committed to human rights and the rule of law. Cambodian
leaders have many difficult decisions to make because Cambodia presently lacks
both a modem economic infrastructure, and legal institutions.
In Human Rights in Political Transitions: Gettysburg to Bosnia, Carla
Hesse and Robert Post take on the issues of how countries that have recently
emerged from years of repression address violations of the past. According to the
two authors, state building is an extremely complex and arduous process that
develops over a much longer time frame and within broader cultural and political
contexts than those in which the human rights community has been accustomed to
working. According to the two authors, international legal norms should not be
used to force countries into establishing social orders which the international
community deems appropriate. According to Hesse and Post the international
community can itself enforce legal requirements and punish crimes against
humanity, as it did at Nuremberg, and it may thereby produce many highly
beneficial results, but such prosecutions cannot create the rule of law within a
nation. Therefore, stated Hesse and Post, the international community cannot
establish the rule of law within a domestic legal system but instead it is the state that
should be the major player in determining what actions should be best taken for
their particular circumstances. Hesse and Post believe that the creation of a
legitimate legal order must be done first at the local level.
5


When confronted with issues of domestic concem-such as Argentinas
military dictatorship which extended amnesty to itself before relinquishing power,
both authors acknowledge that situations such as those are complex and
paradoxical. As a solution to circumstances of that nature, Hest and Post propose
that international norms could be used as an instrument in which to help bridge the
ruler and the ruled. Accordingly, stated Hesse and Post, the job of international
norms is facilitating the most complete possible transition to a legitimate rule of
law.4 Therefore, international law should be used only as a defensible duty to
punish past violations of human rights in which amnesty is necessary for the
achievement of genuine reconciliation and consequently of the rule of law.5
Mark Osiel, author of Making Public Memory, Publicly, stated that the
best way which to prevent a recurrence of massive genocide is actually to cultivate
a shared and enduring memory of its horrors6 According to Osiel, collective
sharing of the pain would create an atmosphere of collective conscience. In Osiels
opinion, a society greatly traumatized by its recent past could be healed through the
process of prosecution and judgment because these two processes would enable the
citizens of the nation to engage in public discussion and in the process could create
a culture of a shared memory. Osiel suggests that criminal law could be used as an
instrument to create an atmosphere of collective conscience. For Osiel, criminal
procedure allows the community to reassert the values of the community that have
been broken by the transgressor. According to Osiel, this process would enable
6


public dialogue between the injured and the injurer, thus creating a shared public
culture amongst the members of the community. For Osiel, sharing openly the trial
and its outcome promotes healing from past transgression within the community.
Michael Feher, author of Terms of Reconciliation, analyzes the ongoing
debate about what actions should be taken against those who committed past
transgression. According the Feher, there are two camps to this debate which he
<7
refers to as the purists and the pragmatist. The purists, stated Feher, are
represented by non-govemmCntal groups such as Amnesty International and Human
Rights Watch, which believe that prosecution is the best choice. For the purist
camp, democratically elected government leaders not only have the authority to
promote the prosecution of past abuses, but they also need to in order to prevent past
human rights violators from feeling a sense of privilege. Leaders also must provide
some other venue for the victims than vengeance.
Conversely, the pragmatists, according to Feher, suggest that amnesty is a
better long-term strategy. Feher notes that although both sides agree that countries
plagued by human rights violations of the past should promote the rule of law
instead of vengeance, they disagree on the ways to ensure that each individual is
accountable for his or her own actions. In this case the pragmatists utilize immunity
as a tool to ensure a stable political atmosphere. According to the pragmatist
argument, prosecuting human rights violations might undermine social and political
7


stability in the country. If granting amnesty to the violators would advance national
reconciliation, then leaders should pursue it.
Feher suggests the debate between purists and pragmatists is essentially the
same. Both purists and pragmatists want to provide guidelines that nascent
democracies should follow in order to prevent a return to their violent past, only
they disagree on the proper course which countries should take. According to Feher,
both purists and pragmatists have done an appalling job in defending international
human rights. For Feher, human rights remain a subject that states, as well as
defenders of human rights, will use for the advancement of their own self- interest.
The Nuremberg Trials, which are considered to be the ideal model for the
purists, are often used as a model that present leaders of nascent democracies are
encouraged to follow. From 1945-46, twenty two individuals and seven groups of
the Nazi regime were put on trail for crimes committed against that of peace, war,
and humanity. It was hoped by many of the Allied leaders that the Nuremberg
Tribunal would establish a system of law and order among nations also facilitating
the political rehabilitation of Germany. Nurembergs accomplishment fell short of
what its creators had desired.
Leo Kahn, author of Nuremberg Trials, states that Nuremberg did
accomplish the mission that it set out to do-that is, to provide some level of justice
to the victims of the Nazi regime. According to Kahn, the Nuremberg Trials were
highly successful in meeting the demands of such atrocious violations as crimes
8


against that humanity faced the Allies in those concentration camps in Germany.
For Kahn, each of the individuals convicted deserved the appropriate sentence given
o
because the accused were convicted under the rule of law.
Henry L. Stimson, writing his assessment on the judgment of Nuremberg,
also believed the Nuremberg Tribunal was essentially fair. In fact he actually
thought that the individual judgments were too lenient. In a passage from his
assessment, Stimson states the following:
If there is a weakness in the Tribunals findings, I believe it lies in its
very limited construction of the legal concept of conspiracy. That
only eight of the 22 defendants should have been found guilty on the
count of conspiracy to commit the various crimes involved in the
indictment seems to me surprising. I believe that the Tribunal would
have been justified in a broader construction of the law of
conspiracy, and under such a construction it might well have found a
different verdict in a case like that of Schacht.9
RA. TH. Klefisch, a German attorney at law in Cologne, concluded that the
Nuremberg proceedings were impartial, loyal to their mandate, and served a sense
of justice, but they were also a trial which has no equal in the history of
nations. 10Klefisch concludes that only those who were actually involved in the court
proceedings, who read all the transcripts, and who contributed all their time and
energy to be involved in every aspect, of the tribunal should be entitled to criticize
the proceedings.
9


Michael Marrus, in his book, The Nuremberg War Crimes Trial 1945-46: A
Documentary History, like Kahn believes that Nuremberg is a great lesson which
future countries could learn.
At its best moments, Nuremberg set an example for a kind of
historical judgment-impartial, but not necessarily dispassionate; fair-
minded, but not without moral compass; searching in its quest for
truth, while recognizing the formal limitations that attend to the
endeavor in an adversary proceeding. Nuremberg was not perfect, by
any means, and it is possible to believe that is warts and blemishes-or
even its structural faults-may be the most important things to discuss
today.11
For Marrus, the lesson learned from Nuremberg should be remembered to prevent
another catastrophe in the future.
Telford Taylor, in The Anatomy of the Nuremberg Trails, also found that the
legacy of the Nuremberg trials is complex. According to Taylor, Nuremberg
actually operated as a synecdoche for all post-World War II war crime trials.12
The South African Truth and Reconciliation Commissions (TRC) is an
example that is often used on the pragmatist side. The truth commission took a
different approach to that of Nuremberg. Under the Commission, reconciliation was
the basis from which to promote a peaceful future. The South African Truth and
Reconciliation Commission was used as a means to expose crimes of the past about
white supremacist rule by granting amnesty to those who were willing to confess
crimes that they committed during the apartheid period. Leaders of South Africa
saw the Truth and Reconciliation Commission as the most effective ways in which
10


to mend to wounds of the past in order to be able to move forward and put its past
behind.
In Truth and Reconciliation in South Africa: Attributions of Blame and the
Struggle over Apartheid, author James Gibson examines the South African Truth
and Reconciliation Commission asking the question of whether or not ordinary
South Africans accept the Commission assumptions that reconciliation would be
accomplished through truth telling. Gibsons research is based on the presupposition
that knowledge promotes forgiveness and therefore reconciliation flows from the
truth. In his research, Gibson concludes that the presuppositions underlying the
truth and reconciliation process are actually incompatible with the ways in which
ordinary South Africans attribute blame.13
Tinyiko Sam Mauleke, author of Can Lions and Rabbits
Reconcile(management of past violence), takes on the issues of reconciliation and
truth telling and the effects it has on South Africans. Mauleke writes from a native
perspective on the South African Truth and Reconciliation Commission, using the
fable of the rabbit and the lion as lessons which South Africa is facing. For
Mauleke, the Truth Commission failed in its purpose to bring true reconciliation for
the black people of South African. According to Mauleke there are many other
ways in which South African blacks feel cheated.14 In the following passage,
Mauleke talks about the issues which South Africa faces:
11


How can there be reconciliation while the gap between the rich and
poor is not only widening, but also retaining its essentially racial
nature? How can there reconciliation amidst such violence? The
South African media has never tired of reminding us that we are
arguably the rape capital of the world15
For Mauleke, the Truth and Reconciliation Commission failed to accomplish
its original intentions and therefore should not be considered in any way a success
story. Mauleke cautions other countries not to use South Africa as an example for
their individual countries.
We must be cautious not to claim as a model either the South African
transition from apartheid to democracy, or its attendant TRC process.
The temptation to make the South African TRC both a model and a
success story on the African continent is a great one, seeing that a
significant part of the resolution and peace making. Contrary to
certain claims-sometimes quite lofty-about the success of the South
African TRC, the phenomenon is not, and probably never will be, a
clear, unambiguous, uncontested, success story.16
But even though Mauleke warns that the South African Truth and Reconciliation
should not be used as an example to the world, he does not provide an alternative,
successful model. Mauleke criticizes the inability of the TRC to call on leaders and
thinkers to account for their roles during the apartheid period process, but refuses to
acknowledge any positive aspects the Truth Commission had in South Africa in its
process to move beyond its history of human rights violations. In the end, Mauleke
praises Nelson Mandela and Archbishop Tutu for their roles in the Truth
Commission. According to Mauleke, it is only these two leaders which brought the
12


TRC any success. For Mauleke, the human factor is what he considers to be the
most essential ingredient in helping South Africa transition into a democracy.
Outline
In chapter two, I start with a background of the Khmer Rouge rule from
1975 to 1979: addressing the hardship that the people of Cambodia faced during
those four years and the enduring impact that period has had on the Cambodian
people. My research concentrates on the years from 1975 through to present day,
focusing on the evolution of human rights in Cambodia and the challenges faced
during the period of the Khmer Rouge rule. It also takes a detailed look at the
effects of Khmer Rouge rule on present day Cambodian and their perspective on
human rights as well as what Cambodia needs to overcome its history of human
rights abuses.
A potential problem of this research is the political instability of Cambodia.
Because Cambodias political system is fairly new, Prime Minister Hun Sen may
not be able to promote democracy within the country. He may revert to a military
or oligarchy rule. If Hun Sen, who some say is a puppet of Vietnam, is encouraged
by the Communists not to follow through, then Cambodia, and all it has been trying
to achieve, will be doomed, and human rights may be put to the wayside once more.
Chapter three discusses the South African Truth and Reconciliation
Commission created in 1995. The Commission charged with extending complete
legal immunity to those who had committed crimes associated with a political
13


objective in the course of the conflicts in the past, was willing to offer full
disclosure of all relevant facts. The objective of the Truth and Reconciliation
Commission was made to secure the foundation for the people of South Africa, and
transcend the division of strife of the past. Chapter three provides a general
overview of the Truth and Reconciliation process in South Africa, and the lessons
that can be learned from it.
Chapter four discusses the importance of individualizing guilt. In places like
the former Yugoslavia where there is a history of brutal cycles of violence, exposing
the perpetrators is an important step in preventing repetitions of massive human
rights violations. Without justice, and without acknowledgment, future evil leaders
will more easily be able to manipulate historic grievances. By individualizing guilt,
criminal prosecutors at Nuremberg were able to give voices to the victims as well as
obtain justice for humankind through a tribunal established by the Allies acting on
behalf of the whole international community of nations. The accomplishments of
Nuremberg and how it relates to future international tribunals will be addressed in
this chapter.
Chapter five analyzes both Nuremberg and South Africa within the
Cambodian context. Should Cambodia have either a Nuremberg style trial, or a
truth and reconciliation commission? Chapter five gives a range of opinions from
Human Rights Watch, to South East Asian leaders, from the United Nations to
14


Cambodian Prime Minister Hun Sen, on what should be done in the case of massive
human rights violations and how it all fits within Cambodian domestic concern.
Chapter six concludes with what I believe Cambodia needs to do to
overcome their present human rights problems. The recommendation in Chapter six
takes into context all the political arguments on how to address human rights
violations and concludes with both a realist and idealist version of what Cambodia
should do in order to overcome their human rights challenge.
Conclusion
For a country emerging from a period of violent oppression such as
Cambodia, the challenges of punishment, reconciliation, and creating a culture of
law are often very complicated. After twenty years of human rights abuses in
Cambodia, issues such as personal rights will be often pitted against what the
leaders of Cambodia consider to be for the greater public good. At times, the
leaders might make the decision that forgiveness would be better than punishment,
or that the interests of the present are more important than that of the possibilities of
the future, or that national culture overrides that of international norms.
What should Cambodia do when faced with how to address its past human
rights violations? The following research will try to address what models are best
for Cambodia in its path towards reconciliation.
15


1 Aryeh Neier, Rethinking Truth, Justice, and Guilt after Bosnia and Rwanda, in Carla Hesse and
Robert Post, eds.., Human Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT
Press, 1999), pp. 39-52.
2 Carla Hesse and Robert Post eds., Human Rights in Political Transitions: Gettysburg to Bosnia,
(New York: MIT Press, 1999), p. 23.
3 Ibid., p. 18.
4 Ibid., p. 19.
5 Ibid., p. 21.
6 Mark J. Osiel, Making Public Memory, Publicly, in Carla Hesse and Robert Post, eds., Human
Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), p. 217.
7 Michel Feher, Terms of Reconciliation, in Carla Hesse and Robert Post, eds., Human Rights in
Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), p. 325.
8 Leo Kahn, Nuremberg Trails, (New York: Ballantine Books, 1972), p.7-159.
9 Henry L. Stimson, Nuremberg: Landmark in Law, Foreign Affairs, December 25, 1947.
10 RA. TH. Klefisch, Thoughts about Purport and the Effect of the Nuremberg Judgment, in
Wilboum E. Benton and Georg Grimm, eds., Nuremberg: German Views of the War Trails, (New
York: Southern Methodist University Press, 1955), pp. 201-211.
11 Michael R. Mairus, The Nuremberg War Crimes Trial 1945-46: A Documentary History, (Boston
MA: Bedford Books, 1997), pp. 243-254.
12 Telford Taylor, The Anatomy of the Nuremberg Trials, (New York: Little Brown, 1992), pp. 5-45.
13 James L. Gibson, Truth and Reconciliation in South Africa: Attributions of Blame and the
Struggle over Apartheid, American Political Science Review, September 01,1999.
14 Tinyiko Sam Malueke, Can Lions and Rabbits Reconcile? (management of past violence),
Ecumenical Review, April 01 2001
15 Ibid., p. 4.
16 Ibid., p. 7.
16


CHAPTER 2
CAMBODIAS CHALLENGE TO HUMAN RIGHTS
To recognize the complexity of Cambodias situation and the challenges
which Cambodians and the international community face today, it is important to
put Cambodian development into a historical perspective and to briefly review the
complex factors that continue to affect the process of reconstruction and
development. The following is a brief look at past and present challenges to human
rights development in Cambodia.
The Past
1950-1969
The tendency to focus on the horrors of the Khmer Rouge rule between 1975
and 1979 obscures the fact that Cambodians have never been protected from
arbitrary rule.1 Prince Norodom Sihanouk himself did not promote human rights
during his reign of power. In 1941, the French installed nineteen-year-old Prince
Norodom Sihanouk to dominate Cambodian political life; little did they know that
he would dominate Cambodian politics for over five decades. Sihanouk, who
understood that the best way to strengthen his own position was to emerge as a
champion of Khmer nationalism against the French, succeeded in winning
17


Cambodian independence from France in 1953.2 But like the French and all other
Cambodian rulers before him, Sihanouk prevented an independent political class
from developmg in Phnom Penh. He tolerated no intermediaries. During the
1950s, Prince Sihanouk frequently arrested and charged political opponents with
treason if they dared to question his policies. According to Bruce Sharp, author of
The Bayan Tree: Untangling Cambodian History, Sihanouks inability to govern
eventually lead to his being overthrown in 1970 by his Prime Minister General Lon
Nol. Sharpe describes rule under Prince Norodom Sihanouk as follows:
Prince Norodom Sihanouk had led Cambodia since its independence
from France in 1953. Formerly, the King, he abdicated the throne in
1955 to run in elections for head of state, and he had survived on the
political stage through a mixture of political acumen and
ruthlessness.. .Sihanouks autocratic style of governing was
beginning to alienate the better educated elements of Khmer society.
The opposition from the left was particularly vocal, and Sihanouk
began to rely more and more on repression to quell dissent.. .Many
Cambodians were losing patience with Sihanouk; they resented the
corruption of his regime and his repression of dissent.4
According to Sharp, as government-sponsored violence became widespread and
remained unpunished, the fabric of Cambodian self-confidence began to unravel.
As a reaction to the corruption, Cambodian students and professionals were
compelled to join forces with guerrillas of the Communist Party of Kampuchea in
the jungle.
18


1970-1975
In March of 1970 Sihanouk was overthrown, in a right wing coup detat led
by his prime minister, General Lon Nol, who had the support of the United States.
Under the rule of General Lon Nol, Cambodia hardly became anymore democratic
than under Norodom Sihanouk. In the spring of 1970, Lon Nol organized anti-
Vietnamese demonstrations across Cambodia and gave the Vietnamese an
ultimatum to leave Cambodia or face an attack.5
The General soon proved to be incompetent both as a military leader and as
a chief of state. The corruption within his administration was worse than that under
Sihanouk, and many Cambodians began to believe that the country would be better
off under the Khmer Rouge. According to David Chandler, author of Facing the
Cambodian Past: Selected Essays, 1971-1994; Cambodian peasants believed that
Sihanouk was their rightful ruler. Even though Sihanouk ruled with an iron hand,
the Cambodians of the countryside loved him. Cambodians were accustomed to
singular, autocratic leadership. Like the Chinese, most rural Cambodians
traditionally saw their leaders as having a mandate from heaven. Throughout the
history of Cambodia, leaders would have the loyalty of the people until someone
more powerful could come along and removed the previous leaders, thus
demonstrating that the mandate from heaven had shifted to him.
Sihanouk, angry over being de-throne, claimed that he still had the love of
his people, decided to side fully and uncritically with the North Vietnamese and the
19


small group of Cambodian communists, whom he referred to as les Khmer
Rouges. 6 It was a disastrous decision. Sihanouks endorsement immediately
provided the communists the nationalist appeal they could never otherwise have
won. Over the next five years, warfare would destroy Cambodian society.
1975-1979
In 1975, when Pol Pots Khmer Rouge came into power, they were greeted
with joyous celebration.8 The people of Cambodia were not supporters of the
Khmer Rouge, but they were greatly relieved that the five years of civil war had
finally come to an end. Cambodia was finally at peace. When the Khmer Rouge
took over Cambodias capitol, Phnom Penh, and began their own social
reorganization plan emptying the cities, breaking up families and communities and
uprooting them from their traditional occupations and origins hope quickly turned
to fear. The process was accompanied by the killing of members of the previous
government and military group and their families. Khmer society was being re-
invented. The Khmer Rouge proclaimed the beginning of their rule to be Year
Zero.9 Just like China before 1911, two thousand years of Cambodian history had
come to an end. Soon the purges extended to merchants and the intelligentsia,
including teachers and students. Ethnic minorities and religious clergy were also
targeted. Thousands more were killed, often after severe torture. In a passage from
20


Cambodian Darkness:
In this century, there has probably been no other revolution which so
completely altered the lives of an entire population. Literally
overnight, entire cities were emptied. Property was abolished.
Money became worthless. Homes and families were destroyed.
Every aspect of every life was suddenly dictated by the new
government. There was no transition period; hundreds of thousands
of people.. .store clerks, factory workers, taxi drivers,
cooks.. .suddenly became farmers. Thousands were executed
immediately. Overnight, Cambodia became a nation of slaves. For
every Cambodian old enough to remember the events of 1975 to
1979, the Khmer Rouge reign would mark a turning point in their
lives.10
The Khmer Rouge wanted to create a new class-free society in which only the
Khmer identity would be allowed to exist.11 The project to establish a uniform
society thus greatly affected ethnic minority groups. Altogether, about 300,000
people were actually murdered, while another one million starved to death. Pol
Pots Khmer Rouge killed between 1.6 and 2 million people, a fifth of Cambodias
population, through executions, starvations, and exhaustion from overwork. The
process ended only when the Khmer Rouge was overthrown by an invasion by
Vietnam.
The Present
The 1970s will long be remembered by most Cambodians as years of
unprecedented horror and suffering. The war and the Khmer Rouge (KR) brought
about the total devastation of Cambodia and its people, turning the social, economic,
21


and political, development cycle back to Year Zero. The most tragic events of this
period were the decimation of a quarter of the population and the unraveling of the
fabric of society.
Although the situation has improved since the overthrow of the Khmer
Rouge regime in 1979, the improvement has been unsteady and relative. In 1993,
the United Nations Transitional Authority in Cambodia (UNTAC) signaled a new
start for Cambodia. For the first time in twenty-five years, UNTAC was able to
bring hope to the Cambodian population. But with the withdrawal of UNTAC in
1994, Cambodia returned to its previous state of lawlessness. In a passage from
William Shawcrosss Cambodias New Deal, Shawcross depicts present day
Cambodia:
Cambodia today is still a semi feudal country, a place of bargaining,
survival, and lawlessness. It is a state of patronage, where anyone
who defies his or her patron is immediately labeled enemy or traitor.
If the country is to benefit in the long term for the U.N. presence,
social and governmental institutions must now be developed and the
beginning of a civil society nurtured and protected.. .Cambodians
require a period of social peace for fundamental change: a time in
which political dialogue can be institutionalized, human rights
developed and protected, the physical environment both preserved
and rebuilt, and the lives of the poor peasantry improved.13
According to Shawcross, the processes of nation building and the completion of the
process of national reconciliation will likely take Cambodia decades before
Cambodia can build a viable government.
22


Craig Etcheson, in his observation on the condition of Cambodia, stated that
even today, following the end of three decades of civil war, human rights still
remain more a theoretical aspiration than a reality for the vast majority of
Cambodias population.14 According to Etcheson, the Cambodian judicial system
remains fundamentally unreconstructed from its authoritarian roots where a culture
of impunity amongst the elite segments of society is still able to prey at will on the
society at large. The most glaring and exemplary of human rights issues in
Cambodia today is the fact that after perpetrating one of the worst genocides in
history, not a single Khmer Rouge leader has been brought before a court of law to
answer for those crimes. And after the defection of two of the last remaining
leaders of Cambodias Khmer Rouge guerrilla group in 1998, there is now an
intensifying international debate over whether they should be brought to justice.
Emotions for an international trial run deep for the citizens of Cambodia.
The governments position, supported by a significant portion of the Cambodian
population believes that retired Khmer Rouge leaders would rise up against the
current government if there were an international trial. But the majority Cambodian
opinion, backed by the bulk of Khmer intellectuals, opposition politicians, and the
international community, dismisses this argument and says an international tribunal
is necessary to cleanse the country of its 25 years of genocide. Prince Norodom
Ranariddh, head of the Cambodian Assembly stated as follow:
23


In my opinion they (KR) must be tried. The Khmer Rouge are well known
for genocide and for crimes against humanity.15
Prime Minister Hun Sen in response to the Prince first stated that it would be
better to bury the past and that any trial would be disruptive to the process of
reconciliation. But later when confronted with mounting outrage, he clarified that
while he favored the punishment of Khmer Rouge leaders, it was up to the courts
and not the politicians to prosecute the men.16
Sam Rainsy. Leader of the opposition party, stated that the government is
afraid of a free and fair Khmer Rouge genocide trial because it would expose
criminals from within its own ranks. The old and the new Khmer Rouge are
1*7
joining hands together, and criminals are protecting the interest of criminals.
When asked about the subject of putting their former leaders in front of a
tribunal, ex-Khmer Rouge troops said that they are not afraid to face charges of
crimes against humanity. Suong Sikoeun, spokesman for the Democratic Nation
Union Movement (DNUM), rejected allegations that genocide contributed to the
deaths of 1.7 million people during the reign of Pol Pot in the late 1970s adding that
the former leaders of the Khmer Rouge were not a pivotal force behind the deaths.18
At present, negotiations still continue between the government and the UN
over the establishment of a tribunal to bring to justice those suspected of gross
human rights violations during the period of Khmer Rouge rule. After the rejection
by the Cambodian side in 1999 of an international tribunal, a new compromise
24


solution of a trial under Cambodian law with international participation is still being
debated.
Conclusion
The human rights challenges in Cambodia are highly complex. Presently,
the country faces the problem of impunity that continues to have an adverse effect
on the lives of Cambodians. The Cambodian judicial system remains weak and far
from independent, numerous court decisions are influenced by corruption or
apparent political influence. The lack of confidence in the judicial system and the
police has led to an increase in vigilante killings, and according to human rights
monitors and the local press, there were numerous reports documenting mob killings
of alleged criminals. People of ethnic Vietnamese descent, and ethnic minorities
remained at risk of human rights violations. Vietnamese refugees in Cambodia in
particular were vulnerable to arrest, detention and forcible return.
In my opinion, the people of Cambodia have lived through centuries of
abuse without any justice given to them. After years of unrest, Cambodians can at
least have a chance to undo all the political injustice done to them dining Khmer
Rouge rule. Through a Cambodian Truth and Reconciliation Commission,
Cambodians would have the opportunity to face their aggressors and demand
acknowledgement for the crimes committed during the mid 1970s. Through the
creation of a Truth and Reconciliation Commission, victims as well as perpetrators
25


would be able to tell their story without fear of retaliation. The Cambodian Truth
and Reconciliation Commission, would provide an open discussion of the Khmer
Rouge period and for the first time victims and perpetrators would come together
and confront the old crimes of the past, bringing it to light to be judged by everyone.
After the truth commission, I believe that Cambodia needs to create a
legitimate legal order in which it is capable of imposing punishment. With the
creation of a strong legal order, Cambodia would be able to punish those for present
and future human rights violations; not only would Cambodian laws be upheld and
respected, it would also create national legitimacy for the Cambodian legal system.
But how can Cambodians go about undoing all the injustice done to them in
the past? And how can Cambodia go about creating a legitimate legal order? In
order to answer these two questions, I am going to look at two case studies: the
South African Truth and Reconciliation Commission, and the International Military
Tribunal at Nuremberg.
The South African Truth and Reconciliation Commission and the
International Military Tribunal at Nuremberg were chosen for their unique
experience in dealing with past human rights violations. The following chapters will
outline the history of the South African Truth and Reconciliation Commission and
the Nuremberg Trials, discussing the historical importance of the two case studies in
the advancement of human rights. Chapter three discusses why South Africa chose
to award amnesty, even extending to crimes against humanity, to justify the need to
26


recover the truth, and how these choices effects nascent democracies overcoming
their own human rights violations. Chapter four discusses the Nuremberg trial and
the importance of making individuals accountable for the choices in which they
make. The lesson learned from these two cases will be used to draw a structure in
which I believe would help Cambodia overcome its human rights challenges. 1 11
1 David Chandler, A History of Cambodia, (Boulder, CO: Westview Press, 2000), pp. 1-60.
2 World War II: and the Seeds of Independence. [Online] Available. http://sunsite
.ust.hk/edweb/sideshow/historv/seeds.html. March 2,2000.
3 Ibid., pp. 2-3.
4 Bruce Sharp, The Bayan Tree: Untangling Cambodian History,
http://users.aol.com/bsharp26/cambodia/bavan 1 .html. November 30,2000.
5 The Coup: Opportunities for Nixon and the Khmer Rouge. [Online] Available., http://sunsite
.ust.hk/edweb/sideshow/historv/couD.html. November 30, 2000.
6 David Chandler, A History of Cambodia, (Boulder, CO: Westview Press 2000), pp.61-150.
7 Wilfred, Deac, Road to the Killing Fields: The Cambodian War of1970-1975, (College Station:
Texas A&M University Press, 1997), pp. 1-120.
8 David Chandler, Facing the Cambodian past: Selected Essays, 1971-1994, (Chiang Mai: Silkworm
Books, 1998), pp. 5-60.
9 This is the era also known as the Killing Fields where more than a million people had lost their
lives.
10 Beauty and Darkness: The Odyssey of the Khmer People. [Online] Available.
http://member.aol.com/bsharp26/Cambodia/ November 30,2000.
11 David A. Ablin, The Cambodian Agony, (Armonk, New York: M.E. Sharpe, 1987), pp. 6-25.
12 Hundreds or thousands of people died of starvation and diseases related to malnutrition.
Ultimately more than a million and a half died in a population of just over seven million.
13 William Shawcross, Cambodias New Deal, (Carnegie Endowment for International Peace:
Library of Congress Catalog 1994), pp. 1-4.
14 Craig Etcheson, Human Rights in Cambodia: Intro to Human Rights in Cambodia. [Online]
Avialable. http://wAvw.derechos.org/human-rights/seasia/doc/camintro.html. December 18,2000.
15 Ranarridh calls for Khmer Rouge Trail. [Online] Available.
http://www.camnet.com.kh/ngoforum/aboutcambodia/Resource Files/Tribunal/ranarridh calls for
khme.html, June 1, 1998-
16 http: thesatr.com.mv/news/storvx1000.asp?file
17 Cambodiaafraid of Khmer Rouge trial [Online] Available, http://tlrestar.com.mv/news/storv.
August 29, 2002.
18 Agence France-Presse Khmer Rouge leaders ready to face trials, says spokesman Global Nation
August 14 2001.
27


CHAPTER 3
SOUTH AFRICAN TRC
History
In an effort to put its past behind it, South Africa, in 1995, created a Truth
and Reconciliation Commission (TRC) to document human rights abuses under the
apartheid system and to grant amnesty to those that were willing to confess their
political crimes.1 The Commission understood that if reconciliation was to have a
chance, a strong human rights culture needed to be developed, and so the New
South African government looked to the Truth Commission as a way to transition
from an apartheid state to one that respected the rule of law. The purpose for the
Commission was to promote reconciliation in South Africas divided society
through truth about its past.
One of the goals of the Truth Commission was to ensure that there would be
no repetition of the past. In order to accomplish that goal, the TRC took on the task
of uncovering the whole truth and not just portions of it. The South African TRC
therefore recognized that truth telling not only meant acknowledging those who
were a part of the apartheid system as well as all acts of violence that happened
during that period. To qualify for amnesty, applicants had to prove among other
things that the crimes that they committed were politically motivated. The
perpetrators did not have to apologize for the crimes committed to be considered
28


for amnesty as long as they give a full disclosure of the truth.
On October 29,1998, the TRC presented its final report. After more than
two years, it had taken more than 20,000 statements from individual victims of
human rights abuse, and received more than 7,000 applications for amnesty. It
rejected 5,500 requests for amnesty while granting only 1,200 pardons. Its final
report not only recommended reparations for 18,000 South Africans who were
victims of apartheid but the Commission also found that the state in the form of the
white South African government was the primary perpetrator of gross violations of
human rights in South Africa from 1960 to 1994. The 1,200 pardons that the TRC
granted amnesty were crimes associated with political objectives. The 5,500
requests that were rejected were considered acts committed for personal gain, or
done out of malice. The TRC final report is considered to be unprecedented in
human rights history in that it had accomplish to reconcile South Africa through the
use of truth telling.
James Gibson, author Truth and Reconciliation in South Africa: Attributions
of Blame and the Struggle over Apartheid, questions whether truth telling in fact
helped to bring about reconciliation for South Africa. According to Gibson,
ordinary South Africans do not believe that knowledge promotes forgiveness or that
reconciliation will flow through truth telling.4 Tinyiko Sam Maluleke, a native
South African, also questions whether the South African Truth and Reconciliation
Commission had accomplished its goal in promoting unity in the country through
29


the use of truth telling. Maluleke sees the South African TRC as a consequence of
compromise. In order to have peace during the transition from that of minority rule
to that of majority rule, stated Maluleke, Nelson Mandela, South Africas first
democratically elected president, chose amnesty as an answer to South Africas
violent past.5 Maluleke felt that the TRC had failed in its promise to reconcile the
people of South Africa because not only was it unable to provide an advantage to
the victims of apartheid, but it also failed because the task that the TRC commission
was bigger than it could handle, thus it was not able to act upon its mandate very
clearly.
Archbishop Desmond Tutu, chair of the South African Truth and
Reconciliation Commission, stated that forgiveness is at the heart of what God
expects of his children,6 But unfortunately for Bishop Tutu and the others from the
faith community who were hoping that victims would forgive their victimizers after
hearing the truth, that forgiveness did not happen universally.
Many South Africans are angry that the perpetrators of human rights abuses
under South Africas last white government can be granted amnesty if they make a
full confession of their crimes without showing any remorse for what they did.
Ntsiki Biko, the widow of Stephen Biko (he was the leader of the Black
Consciousness Movement who died in police detention in 1977), went to the
Constitutional Court to challenge the provision for amnesty, arguing that it deprived
30


South Africans of their constitutional right to justice.7 Although she failed, there are
Q
others who believe that the guilty should spend their lives behind bars.
Other South Africans are asking how much reconciliation has been achieved
by exposing the truth from South Africas dark past. Marius Schoon, whose wife
and daughter were killed by a package bomb sent by agent Craig Williamson, stated
that he failed to see any admission of guilt on the part of the oppressors.9 According
to Schoon, former president F.W. de Klerk did not apologize for maintaining the
apartheid system. Because for de Klerk, the apartheid era was not wrong and
therefore he need not apologize for his actions as well as the actions of the previous
National Party government.10
The spirit of generosity and reconciliation.. .was not matched by
those at whom it was mainly directed. Despite amnesty provisions
extending to criminal and civil charges, the white community often
seemed either indifferent or plainly hostile to the work of the
Commission.. .with rare individual exceptions, the response of the
former state, its leaders, institutions.. .was to hedge and obfuscate.
Few grasped the olive branch of full disclosure.11
For Shoon, de Klerks unwillingness to admit that his former policies contributed to
the apartheid system ruined any chance for reconciliation to take place.
What most people dont understand is that the South African Truth and
Reconciliation Commission was never meant to punish people, its mandate was to
expose the crimes that people committed under apartheid, stated Charles Villa-
Vicencio, national director of research for the TRC. Charles Villa-Vicencio says
that the purpose of the Truth Commission is not to punish the perpetrators but to
31


bring to light the crimes in which they committed in the past.12 The victimizes thus
have to live with the knowledge that the community is aware of what they did in the
past. Any person of conscience who admits to their own cruelty must face their own
worst fears about themselves. This should create a culture where human rights
awareness could be cultivated.
Walter I. Zeichner, on his thoughts on the Truth and Reconciliation
Commission, stated that the TRC did a wonderful job in providing the atmosphere
where communication through truth telling is able to heal the nation of South
Africa. According to Zeichner, it is in the truth that healing becomes possible.14
Former Methodist bishop Peter Storey also agrees with Zeichner, stating that no
matter if amnesty applicants were remorseful or not, disclosure meant at least
acknowledging the truth about what happened.15
Lessons Learned
What lessons did South Africas Truth and Reconciliation Commission serve
in helping other countries deal with their own violent and painful past? In South
Africa, the ancient tyrannical regime of the past was not defeated. The oppressed
black people of South Africa had achieved liberation from the white minority rule
through constant struggle. But before giving up their leadership position, the
National Party and leaders of other powerful white-dominated institutions made
amnesty a nonnegotiable centerpiece of their demand. Thus the newly elected
32


government settled on a compromise. A transitional period was needed in order to
ensure peace in South Africa, and so former President Nelson Mandela chose
amnesty as a path in which reconciliation could be achieved through truth telling.
Through the Truth and Reconciliation Commission, we see that the TRC was able to
grant amnesty that encouraged the citizens of the country to be able to embrace
unity and truth, instead of trying to seek revenge. But even though the Truth and
Reconciliation Commission seemed to heal South Africa from its wounds under the
apartheid system, it did not do anything concrete for the victims of apartheid.
As stated above, Nisiki Biko did not believe that the South African Truth
and Reconciliation Commission had the authority to grant amnesty to those who
were willing to confess their involvements during the apartheid period. According
to Nisiki Biko, no commission can forgive.16 According to Nisiki Biko, the South
African TRC is robbing her of the chance to bring the killers of her husband to
justice. Tinyiko Sam Maluleke also warned that South Africas TRC should not be
used as an example to the world.
We must be cautious not to claim as a model either the South African
transition from apartheid to democracy, or its attendant TRC process.
The temptation to make the South African TRC both a model and a
success story on the African continent is a great one, seeing that a
significant part of the world is in dire need of success stories in the
field of conflict resolution and peace-making. Contrary to certain
claims about the success of the South African TRC, the phenomenon
is not, and probably never will be, a clear, unambiguous, uncontested
success story.17
33


Another failure of the South African TRC is its inability to call the leaders
and thinkers to account for their role in the implementation of apartheid. Allowing
former president F.W. de Klerk and former state President P.W. Botha not to
apologize has hindered the process of reconciliation by refusing to come to terms
with what happened in the past. According to de Klerk and Botha, they did nothing
wrong but follow procedure.
Also, currently, President Thabo Mbeki, acting on the recommendation of
his political advisors, has granted pardons to 33 prisoners, saying the men had been
jailed as a direct result of the liberation struggle.18 Most of the 33 had their amnesty
requests rejected by the Truth and Reconciliation Commission. Mbekis act of
leniency has caused other opposition parties to demand similar treatment for their
own foot soldiers. Black and white leaders alike have renewed calls for general
amnesty for anyone imprisoned for committing a political crime. Archbishop
Desmond Tutu, in response to Mbeki, said that the pardons have threatened to
undermine the work of the commission.
But in general, the South African TRC was more successful than anything
else that has been tried in the past by other countries concerning human rights
violations. Even though it was not perfect, it did serve its puipose in coming to
terms with its dark past. Just like in most situations where massive human rights
violations are being addressed, only time will tell if the TRC was effective in being
able to reconcile the South African nation.
34


1 Lyn S. Graybill, Truth and Reconciliation in South Africa: Miracle or Model?, (Boulder,
Colorado: Lynne Rienne Publishers, 2002), pp. 1-10.
2 Ibid., pp. 9-55.
3 Ibid., p.8.
4 James L. Gibson, Truth and Reconciliation in South Africa: Attributions of Blame and the
Struggle over Apartheid,"American Political Science Review, September, 1999.
5 Tinyiko Sam Maluleke, Can Lions and Rabbits Reconcile?(management of past
violence),'"Eucumenical Review, April, 2001.
6 Lyn S. Graybill, Truth and Reconciliation in South Africa: Miracle or Model?, (Boulder,
Colorado: Lynne Rienne Publishers, 2002), p. 32.
7 Carla Hesse and Robert Post, Introduction, in Carla Hesse and Robert Post eds., Human Rights in
Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), pp. 13-36.
8 The TRC was the first truth commission to have its powers and decisions challenged in court.
9 Mark Gevisser, Hippie Who Became Staunch, Mail and Guardian, February, 1995.
10 Lynne Duke, For de Klerks Party, Apartheid is Part of a Past Best Forgotten, Washington Post,
October, 1995.
11 Walter Zeichner, Thoughts on the South African Truth and Reconciliation Commission Final
Report, [Online] Available, http://www.walterzeicher.com/articles/southaf.html. Ocotober 8.
2002.
12 Lyn S. Graybill, Truth and Reconciliation in South Africa: Miracle or Model?, (Boulder,
Colorado: Lynne Rienne Publishers, 2002), p. 51.
13 JeanBethke Elshtain, True Confessions, The New Republic, November 12,1997.
l4Walter Zeichner, Thoughts on the South African Truth and Reconciliation Commission Final
Report, [Online] Available, http://www.walterzeicher.com/articles/southaf.html. Ocotber 8. 2002.
15 Peter Storey, A Different Kind of Justice: Truth and Reconciliation in South Africa. Christian
Century, September, 1997., pp. 788-793.
16 Carla Hesse and Robert Post, Introduction, in Carla Hesse and Robert Post eds., Human Rights
in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), p.17.
17 Tinyiko Sam Maluleke, Can Lions and Rabbits Reconcile? (management of past violence),
Eucumenical Review, April, 2001., p. 7.
18 President Thabo Mbeki issued a proclamation dissolving the TRC effective on December 31, 2001.
35


CHAPTER 4
NUREMBERG TRIALS
History
During World War II, the victorious Allied forces were faced with issues
concerning how to deal with the massive atrocities committed in Germany.1 In
response to the horrors the Allies encountered during the war, the leaders made a
commitment that justice would be served. On August 8,1945, Allied leaders signed
the London Agreement, promising that an international trial would be held at
Nuremberg under the guidance of Great Britain, France, the Soviet Union, and the
United States to punish Hitler and the men around him for the crimes that they had
committed before and during the war. From 1945 to 1946, The Nuremberg Trails,
also known as the Military Tribunal at Nuremberg, dealt with crimes of
incomparable magnitude.3 Never before, stated Leo Khan, had the world witnessed
a trial that dealt with crimes so vast in scale, and committed with such cold-blooded
design, that the citizens of the world found it difficult that something that atrocious
had actually happened.4
Under the Nuremberg Trial, twenty-two individual and seven groups that
had been organized to carry out the Nazi programs were placed on trial.5The
individual defendants were charged with not only the systematic murder of millions
of people, but also with planning and carrying out the war in Europe. The
indictment of the Nazi organizations was also designed so that Allied leaders could
36


deal with the problem of what to do about the hundreds of thousands of people who
had been members of organizations such as the SS and the Gestapo. What the
Allies wanted to do was to find them to have been criminal organizations, and then
afterwards hold hearings to determine the extent to which a member was guilty.6
The evidence that the Allies presented consisted almost entirely of the words and
documents of the Nazis themselves. During the investigation, the U.S. and British
investigators had discovered literally tons of documents which proved the charges
against the defendants. The decision thus was made to rely on the words of the
defendants themselves in the trial. The Allies charged the defendants with four
types of crimes: conspiracy against peace, crimes against peace, war crimes, and
crimes against humanity.
A result of the Nuremberg Trials was the newly developed concept of human
rights. World War II was the primary stimulus in which the contemporary concept
of human rights came into being. Because the Holocaust and other Nazi atrocities
could not go unpunished merely because they had been legal under the German
system, the introduction of the novel concept of crimes against humanity provided
a basis for international law. For the first time, at the trials at Nuremberg, the leaders
of government were brought to trials on the charge of not only starting an aggressive
war, but also for the systematic genocide of the Jewish population. The Allied
\
nations responsible for conducting trials at Nuremberg hoped they would mark a
great forward step in the preservation of peace and civilization.
37


On September 30 through Octoberl, 1946, the Tribunal read its final
judgment. According to the judgment, twelve were sentenced to hang, three
defendants were acquitted, three others received life sentences, and the remaining
four receiving sentences of ten to twenty years.8
Even though the Nuremberg trial was referred as the greatest trial in
history,9 by the distinguished English jurists Sir Norman Birkett, there are some
persons who criticized the trials as acts of vengeance by the victorious nations,
arguing that there was no basis in international law for trying the German leaders on
the charge of crimes against war, peace, and humanity. The German people were
represented in Nuremberg only as mass murderers and criminals of the worst
kind,10 stated Karin Chubb and Lutz Van Dijk. The idea of a victors justice, stated
Chubb and Van Dijk, had played a prominent role in the discussions of the
Nuremberg Trials. According to the two authors, the Nuremberg trial has become a
legal and an emotional symbol of injustice.
But according to author Leo Kahn, Nuremberg was a genuine trial.1 !For
Khan, Nuremberg was highly successful in providing justice. According to Khan,
each of the defendants was criminals deserving punishment for the crimes in which
they committed. Michael R. Marrus, also agreeing with Kahn, stated that even
though Nuremberg was by no means perfect, it did provide an impartial trial.12
Supreme Court Justice Robert H. Jackson stated that Nuremberg provided a fair trial
and a fair judgment. According to Justice Jackson, the defendants got as fair a trial
38


that they are going to get, something in which they would have never considered for
another man. Justice Jackson also understood the importance of keeping history as
pure as possible. Jackson cautions:
We must not forget that when the Nazi plans were boldly proclaimed
they were so extravagant that the world refused to take them
seriously. Unless we write the record of this movement with clarity
and precision, we cannot blame the future if in days of peace it finds
incredible the accusatory generalities uttered during the war. We
must establish incredible events by credible evidence.13
Lessons Learned
What lessons can be drawn from the Nuremberg trial. As we saw in the
Nuremberg judgment, the moral impact on the world should not be underestimated.
The planned extermination of all Jews in central and Eastern Europe required the
hands of hundred and thousands of people. Following is Leo Khans description of
the mindset of the Germans before the end of World War U.
But the systematic, protracted, bureaucratically controlled process of
killing off millions of victims, who presented no danger and whose
death brought no advantage to the killers, could only be interpreted
as the manifestation of a diseased mind; and the whole German
nation seemed to be affected by the disease. That nation had to be
crushed into a state of impotence in which it could never do any
harm again.14
According to Khan, all German citizens had some or a lot of knowledge of the
crimes that the Nazi committed. For Khan, soldiers and citizens have a moral duty
to disobey cruel order or laws. Nuremberg, stated Khan, was to remind the people of
39


the world that crime against humanity is an international crime, and those who
chose to violate that law should be punished. The documents that were entered into
evidence at Nuremberg told of the horrible tale that occurred during Nazi rule,
which also serves as a reminder for future generations the crimes that the Nazis had
committed. For Khan, the trials became a precedent setter for future offenders of
international law, setting guidelines and structures for tribunals that have to address
such complicated issues as human rights, genocide, reconciliation, and justice.
But it has been a little over fifty years since the Nuremberg trial and yet
there has been no international tribunal created to try crimes against humanity since
the International Military Tribunal. No international body had been gathered to try
aggressor nations or individuals accused of war crimes. Various effects have been
made in the ensuing half-century, but all have languished. And only recently, with
the establishment of UNs International Criminal Tribunal that is addressing war
crimes in the Former Yugoslavia and Rwanda, have that ideals set at Nuremberg
taken a substantial form.
So which paths should nations take when they are faced with addressing
crimes of the past? In South Africa, the issue of justice is complicated because of
their recent past. For South Africa, to ensure that democracy would have a chance
to grow, building a strong infrastructure was more important than giving justice to
the victims of the past; but both Hesse and Post also bring up the issue that the cries
of those victimized should be heard. The transition from being a country enslaved
40


in gross violation of human rights to a more democratic nation, to advance, it must
first have a secure foundation.. .(so that) the people of South Africa could
transcend the divisions and strife of the past.15
For the victorious Allies, The Nuremberg trial was chosen to meets
the demands of a world face with horrors unknown before. And out of the
Nuremberg, we get the basic legal principles that prevent guilty individuals from
sheltering behind the abstract concept of the State. Accordingly, the concept comes
from the idea that crimes are committed by men and not entities. According to Leo
Kahn, Nuremberg itself was considered highly successful in that it accomplished in
meeting the demands of a unique situation. 1
1 Allied leaders received reports of Nazi up
rooting and enslaving entire populations, slaughter of political opponents, prisoner of war, and
ordinary people persecuted for reasons of face, religion, and nationality.
2 Wilboume E. Benton, Introduction, in Wilboume E. Benton and Georg Grimm, eds., Nuremberg:
German Views of the War Trials, (Dallas: Southern Methodist University Press, 1955), p. 13.
3 Manus, Michael, The Nuremberg War Crimes Trial 1945-46, (Boston MA: Bedford Books, 1997),
PP- 1-4.
4Leo Khan, Nuremberg Trials, (New York: Ballantine Books, 1972), p. 15.
5 Manus, Michael, The Nuremberg War Crimes Trial 1945-46, (Boston MA: Bedford Books, 1997),
pp. 5-50.
8 January Godkin, Origin of the International Military Tribunal at Nuremberg, [Online] Available.
http://www.nucleaifiles.org/ehtics/nuremberg/Ther Nuremberg Trials, html. October 9,2002.
7 Ibid, pp.51-70
8 Joshua Daniel Frankin, The International Military Tribunal: An Overview and Assessment,
[Online] Available, http://www.iocc.com/~ioshua/historv/trials/trials.html. September 14,2002.
9 H. Montgomery Hyde, Norman Birkett: The Life of Lord Birkett of Ulverston, (London: Hamish
Hamilton, 1964), p. 504
10 Karin Chubb & Lutz Van Dijk, Between Anger: South Africa's Youth and the Truth and
Reconciliation Commission, (New Brunswick: Witwatersrand University Press), p. 7.
nLeo Khan, Nuremberg Trials (New York: Ballantine Books, 1972), p. 11.
12 Manus, Michael, The Nuremberg War Crimes Trial 1945-46, (Boston MA: Bedford Books, 1997),
p. 254.
41


13 Robert H. Jackson, The Nuremberg Case 7-8 (1947)
M Leo Khan, Nuremberg Trials, (New York: Ballantine Books, 1972), pp. 9-63.
15 Carla Hesse and Robert Post, Introduction, in Carla Hesse and Robert Post eds., Human Rights
in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), p. 17.
42


CHAPTER 5
THE CAMBODIAN CONTEXT
International View
It is well known that human rights was originally a western concept
originating from the experience and political philosophy of Western Europe. When
the phrase human rights came into popular usage after the Second World War, it
referred to laws protecting citizens from being abused or suppressed by their
governments. The destruction of human life during the Second World War had
prompted the countries of the world to bring forth a document that would protect
human beings from similar violations in the future. The Universal Declaration of
Human Rights therefore was drafted with the goal of making human rights explicit.
Jack Donnelly, in the Social Construction of International Human Rights,
states that the very concept of human rights itself proclaimed that human rights are
universal and therefore have no national boundaries. Therefore, in theory, human
rights are the entitlement of all men, women, and children wherever they may be.
But according to Donnelly, in practice human rights are recognized or rendered
enforceable varies from country to country.1 Therefore it comes as no surprise, that
the more democratic a government, the greater the recognition and enforceability.
In 1993, China, Vietnam, Indonesia, Iran, Syria, Burma and Singapore
produced the Bangkok Declaration for the United Nations Vienna Conference on
43


Human Rights. In it, they demanded that human rights be addressed in context of
national and regional peculiarities and various historical, cultural and religious
backgrounds.2 While there were no doubts that the context for human rights varies
from country to country, the Bangkok group went much further and simply rejected
any and all criticism of government actions.
Two advocators of the Asian model, Lee Kuan Yew of Singapore and
Prime Minister Mahsthir Mohamad of Malyasia, offered a different view on human
rights. For former Prime Minister Lee Kuan Yew, there is a cultural uniqueness;
human rights therefore should be curtailed for the sake of economic development
and social harmony.3 These claims have been greatly embraced throughout the
region. In Lee Kuan Yews opinion, most countries need discipline more than they
need democracy. Lee blames the United States decline as a world leader because of
excessive legalism and individual-centrism that caused the breakdown of society.
Therefore liberal democracy and individual human rights are inappropriate to the
political and social culture in Asia.
Kim Dae Jung, in response to Lee, states that the idea of Asian values comes
from its anti-Western system, which is considered not only to be alien to that of
Asian culture, but also as an attempt by Westerners to impose their values on Asian
countries (a form of cultural imperialism) to be bogus. For Dae Jung, Asian values
are just a response to play against the Western demand for human rights
implementation and distorts their meaning in a manner convenient to its purpose.
44


For example, agreeing on the Western concept of sovereignty, but not for human
rights. Kim Dae Jung believes that both concepts of human rights and state
sovereignty are closely connected; stating that it is the principle of sovereignty
protects minor and weaker states against the oppression of major and hegemonic
states, just as human rights protect weaker individuals and minorities against
stronger political and social forces.^Dae Jung blames developing countries (such as
Cambodia under the Hun Sen government) that use state sovereignty as a shield to
protect themselves from other countries response to their human rights violations.
\
Dae Jung ends with the belief that human rights are the moral basis for sovereignty.
Human Rights Watch, and Amnesty International, two strong advocators of
human rights development, says that Cambodia needs to be observed closely.
According to the two non-govemmental organizations, Cambodia needs to follow
through with the Khmer Rouge Trials in order to stop current human rights
violations.5 Impunity remains at the central of Cambodias human rights problems.6
According to Amnesty International, in the vast majority of cases where agents of
the state were implicated in involvement in human rights violations, no action was
taken against them. Human Rights Watch in particular believes that cultural
relativism is used only by countries in which who dont want outsiders to intrude
with the policies of their countries.
The United States, Britain, Japan, Australia, and France have all issued
strong statements saying that leaders of the Khmer Rouge must be held accountable
45


for their actions. Under the United Nations, these countries having been striving for
a Khmer Rouge trial since 1998, when the two top leaders of the Khmer Rouge
(Khieu Samphon, and Noun Chea) surrendered to the current Cambodian
government. At present, the Cambodian judicial system remains weak and far from
independent, numerous and court decisions are influenced by corruption or apparent
political influence. UN Secretary-General Kofi Annan stated that the UN will not
hold a trial unless it holds up to international standards. According to Kofi Annan,
the Cambodian justice system is under Hun Sens control and is ill equipped to
handle a Khmer Rouge trial. And as of the present, negotiations for a Khmer
Rouge trial are still being collaborated with the United Nations.8
Cambodian View
Cambodian Prime Minister Hun Sen, siding with Lee Kuan Yew, stated that
not only is human rights relative, but human rights itself is a form of western
imperialism. For the Prime Minister, sovereignty is the only tool in which small
countries like Cambodia are able to protect itself from powerful first world
countries. Democracy is a stalking horse for a new colonialism. According to Hun
Sen, referring to his ability to see the larger picture stated, they9 only worry about
the welfare of a single tree, but I worry about the entire forest.10 He continues,
stating that what Cambodia needs is not for outsiders to meddle in the affairs of
Cambodia. The Prime Minister sees the Cambodia situation as a unique
circumstance from that of the world. In Hun Sens opinion only those who have
46


knowledge of Cambodias culture and customs, and has lived through the Khmer
Rouge period has a say in what the country should do to overcome its past human
rights violations. For Hun Sen, all Cambodia needs is to put behind its past so that
it can emerge into a new future by way of reconciliation. But if, that is if Cambodia
was to follow through with a Khmer Rouge Tribunal, stated the Prime Minister, it
would be held in Cambodia, in Cambodian courts, with Cambodian prosecutors,
under domestic Cambodian laws, and with limited international involvement.
Hun Sen also stated that a Khmer Rouge trial should be balanced with
reconciliation. According the Prime Minister, an international tribunal would not be
in the national interest, as would a peace and reconciliation commission.11 For Hun
Sen, holding a trial might endanger the fragile peace that Cambodia has enjoyed
since the defection of top Khmer Rouge leaders. According to the Prime Minister,
the United Nations does not understand how delicate the issues of national
reconciliation and the Khmer Rouge trial are for Cambodia in ensuring that another
civil war will not break out again.
Sam Rainsy, leader of the opposing party, disagrees with the prime minister,
stating that the government is afraid to have a Khmer Rouge trial because it fears
that it would expose criminals from its own ranks.12 Rainsy believed that, the old
and the new Khmer Rouge are joining hands together, and criminals are protecting
the interest of the criminals.13 According to Rainsy, Cambodia needs to have a
genuine Khmer Rouge Tribunal with UN and international involvement so that the
47


conditions of ordinary Cambodians can be improved. In the following passage, Sam
Rainsy questions the reason why Cambodia cannot move beyond its human rights
violations.
Were we demanding too much? We were demanding an independent
judiciary, a corrupt free tribunal. We were protesting politically
motivated decisions by our national courts and we were denouncing
the power of money that distorts justice. We were condemning the
powerful officials and the rich businessmen who used the courts to
legalize their misdeeds. We were demanding real and biased justice
for the ordinary citizens, the powerless and the poor people. We
were asking for equality of all citizens before the law. Was it wrong
to put forward our demand? Were democracy and what it entails in
terms of rights and freedoms only a joke and were we not insightful
enough to realize that it was crazy to try to exercise those rights and
freedoms in a country like Cambodia? We candidly thought it was
natural to start living in the light of principles enshrined in our
Constitution and the Universal Declaration of Human Rights, which
the United Nations brought to the Cambodian people immediately
after the 1991 Paris Peace Accords. It was during that glamorous
UNTAC era, which saw Cambodia moving out of darkness. Why
didnt they tell us that it would be only a show for a brief period and
that we should not believe too much in their story about democracy
and human rights? 14
According to passage by Sam Rainsy, Cambodia is unable to move beyond its
human rights violations because of its inability to overcome corruption within the
system. Rainsy sees the problem of impunity, caused by the lack of neutrality and
independence in the judicial and law enforcement, as the heart of Cambodias
human rights problems. For Sam Rainsy, human rights and respect for the rule of
law are just dreams which Cambodians can hope to one day attain.
48


Thun Saray, of the Cambodian Human Rights and Development
Association, stated that a trial is essential.
We need to provide justice for our people. We need to put an end to
impunity.. .1 do not want revenge against the Khmer Rouge, even
though I was put in prison, my family scattered. One of my brothers
was killed; a sister lost five children because of the oppression. If
you say forget the past, it is unfair for the people who suffered.15
According to Thun Saray, a trail is needed in order to be able to provide justice for
the Cambodians who survived the Khmer Rouge periodl.
Chhen Ran, a victim during Khmer Rouge rule stated, we have been living
all these years, waiting, and we still have no justice.16According to Chhen Ran,
Cambodia needs to have a Khmer Rouge trial in order to find justice for the people.
Lao Mon Hay, executive director of the Khmer Institute of Democracy in Phnom
Penh, also believes that a tribunal is necessary to overcome human rights
challenges. For Lao Mon Hay, a truth commission would not work in Cambodia
because in his opinion, there is no Cambodian statesman who could give such a
commission its necessary moral authority like Nelson Mandela and Archbishop
Tutu in South Africa.17
Mardi Seng, author of A Spirit of Survival, states that the loss of power of
the Khmer Rouge has open up the opportunity for the victims to return and help
rebuild Cambodia.
The future is looking a whole lot brighter with the advance of
political stability. The infighting amongst factions had effectively
ended. They are now too busy making easy money than making
49


difficult wars. Peace has finally prevailed after nearly decades of
turmoil. The Khmer Rouge, as a political and military organization,
is effectively dead. Its former senior leaders, those who are still alive
and clever enough, are seeking a dark hole to hide-in order to avoid
being prosecuted. A few sat in jail awaiting a trial, whimpering.
They would pay for their heinous crimes in this life or the next one.
They can no longer play Gods with innocent people lives as they did
once. They are finished! Done!18
We can see from the quote by Mardi Seng that the opportunity to achieve a sound
legal resolution to the crimes of the Khmer Rouge and overcoming Cambodias
human rights challenges is close at hand. For Seng, the surrendering of the Khmer
Rouge in 1998 has Cambodia the opportunity to deal with its past history.
What actions should Cambodia take after thirty years of human rights
violations? Should Cambodia follow through with a Khmer Rouge Trial, advocated
by the United Nations, Human Rights Watch, and Amnesty International, or should
it follow in the line of a truth and reconciliation commission? Or, should Cambodia
take Prime Minister Hun Sens suggestion and conduct a trial, that takes into
account all of Cambodias cultural and historical content into consideration.
The following, and concluding chapter, is my personal opinion on what I
believe would be best for Cambodia to move from a country full of human rights
violation to a one that respected the rule of law. 1
1 Jack Donnelly, The Social Construction of International Human Rights, in Tim Dunne and Nicolas
J. Wheeler, eds., Human Rights in Global Politics, (Cambridge: Cambridge University Press, 1999),
pp. 71-102.
50


2 Liu Paopu and Xiaou Qiang, A Report on the World Conference on Human Rights in Vienna,
Fall 1993.
3 Fareed Zakaria, In Conversation with Lee Kuan Yew, in Martha Meijer, ed., Dealing with Human
Rights: Asian and Western Views on the Value of Human Rights, ( 2001), p. .
4 Kim Dae Jung Is Culture Destiny? The Myth of Asias Anti-Democratic Values a Response to
Lee Kuan Yew, in Martha Meijer, ed., Dealing with Human Rights : Asian and Western Views on
the Value of Human Right,.(2001), p.98.
5 Human Rights Watch, 2002.
6 Amnesty International Annual Report, 2002.
7 Human Rights Watch, 2000.
8 Hun Sen sees door opening on Khmer Rouge trial. [Online] Available.
http://www.inq7.net/wnw 5-1 .htm. January 12, 2001.
9 Hun Sen referring to Human Rights Watch, Amnesty International, and the United Nations
10 I dont trust you, Cambodias Hun SEn warns the UN. Aeence France-Presse. Monday March 6.
2000.
11 Cambodia: Hun Sen says a Khmer Rouge trial must be balanced with reconciliation, [Online]
Available, http://www.alirechk.net/news/mianfile.php/ahrnews 200107/983. September 9. 1998.
12 Rainsy says Government Afraid of Khmer Rouge Trail" AFP, (August, 1999).
13 Rainsy says Government Afraid of Khmer Rouge Trail" AFP, (August, 1999).
14 Sam Rainsy Party, Statement by Sam Rainsy, at the Ceremony Commemorating the Third
Anniversary of the Grenade Attack in Front of the National Assembly. [Online] Available.
http://mekong.net/cambodia/rainsvl .htm., June 7,2002.
15 Dennis Coday, UN, Others Push for Cambodia War Crimes Tribunal, National Catholic
Reporter, June, 2000, p. 16.
16 Will Justice Ever Be Served? As talks with the UN collapse. Cambodia moves to set up a
Tribunal to try former Khmer Rouge Leaders. Many Fear it will prove to be a sham, Time
International, April, 2000., p. 16.
17 Mark McDonald, Cambodians welcome prospect of Khmer Rouge tribunal, Knight-Ridder
Tribune, March, 1999., p. 990.
18 Mardi Seng, A Spirit of Survival, [Online] Available.
http://www.cvbercambodia.com/dachs/stories/mardi.html.. August 23,2002.
51


CHAPTER 6
CONCLUSION
Cambodia today is not the Cambodia of the past. Presently, it is not engaged
in war, nor is it actively killing people by the millions (as the Khmer Rouge did
during their rule in the mid to late 70s), but it is still heavily suffering from massive
corruption, where impunity has run amuck. Cambodia is one of the poorest
countries of Asia (even though the Cambodian economy which was virtually
destroyed by decades of war is slowly recovering, 90% of the population still lives
in poverty).1 Presently it has one of the highest rates of HIV/AIDS infection in
Asia2, two-thirds of Cambodians are illiterate3, and the infant mortality rate is the
worst in Southeast Asia. Cambodia also remains one of the worlds most heavily
landmined countries.4 Unfortunately for Cambodia, it also lacks any kind of legal
background, as well as resources in which to conduct a true and fair tribunal. Thus,
the burdening question still remains as how one helps a nascent country like
Cambodia overcome its human rights violation when it is confronted with so many
other pressing issues.
But before I try to attempt to answer, I will first address the lessons learned
from the previous chapters and see how these examples could help Cambodia deal
with its many human rights issues. In chapter three, we see that South Africas
52


Truth and Reconciliation Commission was a unique experience in itself. First of all,
South Africa did not go through a civil war, therefore the ancient tyrannical regime
of the past was not defeated. Thus to promote a peaceful transition, President
Nelson Mandela and his newly elected South African government chose the path of
truth telling to help the people of South Africa to come to terms with their dark past.
Unfortunately, the South African TRC did not do anything concrete for the victims
during the apartheid period.
The Nuremberg Trials on the other hand was more of a victors justice.
Under the watchful eyes of the Allies, leaders of Nazi Germany were put on trial for
the atrocious crimes that they committed before and during the war. Nuremberg
was unprecedented in that for the first time, government leaders were brought to
trial on the charge of not only starting an aggressive war, but also for crimes against
humanity. Nuremberg was considered to be successful in dealing with a very
unique situation.
In chapter five, I looked at the opinions on human rights, taking into account
both international and local (Cambodian context) views on how human rights
violations should be addressed. According to Human Rights Watch, Amnesty
International, and the United Nations, human rights is universal, therefore it has no
national boundaries. Accordingly, the arguments used by China, Vietnam,
Indonesia, Iran, Syria, Burma, and Singapore (also known as the Asian Model)
stated that cultural uniqueness should be taken into account for each country, is
53


not considered valid for major human rights violations. Cambodian Prime Minister
Hun Sen, also a supporter of cultural uniqueness, believed that human rights are
relative. Him Sen believes that Cambodia should be left alone to conduct a trial if it
sees fit to do so. The Prime Minister sees human rights as a form of western
imperialism which it does not take into context Cambodias historical background,
or its cultural uniqueness. But Sam Rainsy, an opponent of the Prime Minister,
disagreed, stating that Hun Sen is afraid to confront human rights violations because
he fears that it would expose major human rights violators from his own party.
According to Rainsy, Cambodia needs to confront past human rights violations in
order to prevent new human rights violations.
Thus after careful deliberation, taking all the different political views into
perspective, I came to the conclusion that there is a two- part solution for Cambodia
to overcome its human rights challenges. My first recommendation would be for
Cambodia to proceed along the lines of a truth and reconciliation commission.
Through a truth and reconciliation commission, Cambodians would be able to break
the traditional compliant subject culture which is marked by emotional reserve.
They would be able to talk openly about the past without fear of retribution. A truth
and reconciliation commission would allow the brutal stories of the Khmer Rouge
period to be brought out into the open, allowing everyone to be a part of a shared
history in order to heal. Therefore, through the commission, victims as well as
54


perpetrators would be able to expose the evils of the past, encouraging political
dialogue which is necessary for Cambodian reconciliation.
In an interview with Youk Chhang, Chhang seeks a Khmer Rouge trial in
order to bring out the truth about his experience during Khmer Rouge mle. In the
following passage, Mr. Chhang explains the importance of a trial for Cambodians
who survived.
I think that there is no punishment on Earth, there is no punishment
from heaven, that would compensate for what the Khmer Rouge has
done to all of us. But the people want to know the truth that is what
is significant about the trial. The genocide survivors want to be free
from the past, they want to know what really happened. We have
been waiting for 20 years, and for us its as though a light bulb has
been lit up in a dark room, so we can see what is inside the room.5
According to the passage, Youk Chhang believes that it is only through truth telling
that survivors could be free from their past. For Chhang, truth telling and justice
should go hand and hand in order to create an atmosphere where Cambodians laws
and human rights would be upheld and respected.
In the story, The Tonle Sap Lake Massacre, Ranachith Yimsut tells his
traumatizing story in which he overcomes his anger and grief by way of forgiveness.
In the story, Ranachith, only fifteen had escaped death by hands of the Khmer
Rouge and manages to escape to the border of Thailand and eventually to the United
States. Ranachith had witnessed the deaths of family, friends, and fellow
Cambodians even before he reached the ripe old age of sixteen. Fourteen years later,
after years of loneliness, Ranachith came to this conclusion:
55


We must go on, life goes on and forgiveness is the key to it all. I
have also realized that revenge is not the answer to my pain and
anger. It was forgiveness of the people who had hurt me, both
physically and emotionally. I have never achieved inner peace until
after I have forgiven the murderous Khmer Rouge. In a way, I have
to thank them for they had made me who I am today, a stronger
person.6
According to the passage, the only way to reconciliation is the ability to forgive
those that harms us. For Ranachith, revenge is not the answer to dealing with his
pain and anger from the inflicted on him by the Khmer Rouge, but it is his
acknowledgment of the crimes that was committed on his person and his ability to
forgive the perpetrator is what has helped him become a stronger person.
There are countless other stories of Khmer Rouge terror, and Ranachith is
one of millions of voices that need to be heard. Through the guidance of a truth and
reconciliation commission, stories like Ranachith can be shared. The commission
would be allow truths of the past to come out without fear that retribution would be
taken against them. Thus a truth commission would be the first step to help guide
Cambodians into the path of reconciliation.
My second suggestion is for Cambodia to create a strong judicial system
independent, from corruption and political influence. Presently, Cambodia is known
for its state of impunity and lawlessness. For instance, in the February 2002 local
elections, Human Rights Watch reported that political violence had increased;
documenting eighty-two cases of political threats and violence that were directed at
the opposition party. In June, four commune candidates had been shot dead and two
56


o
others wounded. By way of a strong judicial system, it would serve as a deterrent
to others to not engage in such conduct in the future. Having a culture which
respected the rule of law would make individuals responsible for the choices they
make.
Cambodia, the country known for its Killing Fields9now needs major
democratic reforms in order to prevent another crisis from happening again. The
people of Cambodia have lived through three decades of civil war without any
justice given to them. After years of unrest, the Cambodian people finally have a
chance to undo all the political injustice done to them during the Khmer Rouge rule.
They now have the opportunity to face their aggressor and demand justice for the
lost people of the 1970s. To preserve the newfound peace, Cambodians must
confront the old crimes of the past as well as the present. But for Cambodia to have
a brighter future, Cambodians must build upon themselves. Through a combination
of a South African Truth and Reconciliation Commission, and a Nuremberg trial,
the Cambodian people and the government can work together to build a new society
in which the rule of law is respected.
For the last thirty years, Cambodia has been in one kind of conflict or
another. After years of hardship, it now has the opportunity to overcome its past.
Will Cambodia conduct a Khmer Rouge Tribunal, or will it choose to have a truth
and reconciliation commission, or neither. Only time will tell.
57


1 The governments lack of experience in administering economic and technical assistance programs,
as well as rampant conuption among officials have caused growth of critical public sector investment
to slow down.
2 Cambodia has the highest HIV/AIDS in South East Asia.
3 Andrew Lam, Pol Pots Curse Lives On-A Rural Rage against the City, [Online] Available.
http://www.Dacificnews.Org/imn/stories/4.08/980421-cambodia.html.
4 Human Rights Watch 2002: Asia: Cambodia. [Online] Available.
http://hrw.org/wr2k2/asia3.html.
5 Cambodia seeks truth in Khmer Rouge Trial, World News Asia Pacific, January 6, 2001
6 http://www.cybercambodia.com/dachs/stories/ronnie.html
7 ibid.
8 ibid.
9 The Movie The Killing Fields depicted Cambodia during the rule of the Khmer Rouge during
1975-79, thus the name stuck for that particular period
58


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Neier, Aryeh. 1999. Rethinking Truth, Justice, and Guilt after Bosnia and
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World War II: and the Seeds of Independence. [Online] Available. http://sunsite
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Full Text

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CAMBODIA'S CHALLENGE TO HUMAN RIGHTS: TOWARDS A MODEL OF RECONCIT..,IA TION by Chanthan Kim B.A., University of Colorado at Denver, 1998 A thesis submitted to the University of Colorado at Denver in partial fulfillment of the requirements for the degree of Master of Arts Political Science 2002 r--l,. ALi, .,_ __ J

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This thesis for the Master of Arts degree by Chanthan Kim has been approved by Steve Thomas

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Kim, Chanthan (M.A., Political Science) Cambodia's Challenge to Human Rights: Towards a Model of Reconciliation Thesis directed by Associate Professor Steve Thomas ABSTRACT This thesis seeks to explore the dilemma between peace and justice, between reconciliation and punishment, and the challenges to Cambodia to promote and protect vital human rights interests, while still being flexible enough to accommodate the needs of Cambodians. Through the research of two case studies, the South Afiican Truth and Reconciliation Commission and the Nuremberg Trials, I propose to find a solution for Cambodia, emerging from the aftermath of mass violence and genocide to overcome its recent serious human rights violations, and trying to create a functioning state where the law and human rights are respected. The literature review section examines the general view on how to protect and promote hwnan rights in countries that have experienced massive hwnan rights. The Truth and Reconciliation Commission and the Nuremberg Trials are two cases that are considered the models to help countries overcome human rights violations. To understand the importance of these two cases, detailed research was completed on the South Afiican Truth and Reconciliation Commission and the Nuremberg Trial. It was discovered that both mod_els serve the needs of Cambodia reasonably well. This is true in that the Truth and Reconciliation Commission encouraged the truth of the past to be collectively shared and acknowledged by both the victims and the perpetrators. This was also true in the Nuremberg case because the trials promoted individual accountability, which helped to create a culture that respected the rule oflaw. lll

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Finally, solutions addressing the problems ofCambodia's human rights were discussed, such as combining the Truth Commission and the Nuremberg Trials to promote a new culture that will not only respects human rights, but one that also respects the rule oflaw. This abstract accurately represents the content of the candidate's thesis. I recommend its publication. Signed Steve Thomas IV

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DEDICATION I dedicate this thesis to my parents for their unfaltering understanding and support while I was writing this. I want to thank you both for all the love that you have given me. Thank you for everything.

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ACKNOWLEDGMENT I want to thank my advisor, Steve Thomas, for all his patience and his helpfulness with me for these past few semesters. Thank you so much for understanding how important this topic was for me. I want to thank all my professors, Steve Thomas, Glenn Morris, Lucy McGuffey, Anna Sampaio, and Amin Kazak, for sharing their time and knowledge with me. Each of their classes has helped me not only broaden my horizon, but also help develop my critical thinking skills for which I will be forever grateful. I also want to thank Phearum Chin, my Cambodian friend and advisor, for all ofhis support throughout these two years. Thank you for helping me to understand the differences between the two cultures. Thanks again for all of the debates.

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CONTENTS CHAPTER 1. INTRODUCTION .................................................................................. 1 Literature Review ............................................................................ 4 Outline ........................................................................................... 13 Conclusion ..................................................................................... 15 2. CAMBODIA'S CHALLENGE TO HUMAN RIGHTS ...................... 17 The Past ......................................................................................... 17 1950-1969 ............................................................................... 17 1970-1975 ............................................................................... 19 1975-1979 ............................................................................... 20 The Present .................................................................................... 21 Conclusion ..................................................................................... 25 3. SOUTH AFRICAN TRC ..................................................................... 28 History ........................................................................................... 28 Lessons Learned ............................................................................ 32 4. NUREMBERG TRIALS ...................................................................... 36 History ........................................................................................... 36 Lessons Learned ............................................................................ 39 5. THE CAMBODIAN CONTEXT ......................................................... 43 Vll

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International View ........................................................................ 43 CaJDbodian View ........................................................................... 46 6. CONCLUSION .................................................................................... 52 BIBLIOGRAPHY ................................................................................................. 59 Vlll

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CHAPTER I INTRODUCTION Since the late 1990s, Cambodia has been struggling over the question of whether Khmer Rouge (KR) top officials should be brought to justice for crimes against humanity during their rule in the 1970s, (from 1975-79, Pol Pot's Khmer Rouge had killed 2 million people, a fifth of Cambodia's population, through executions, starvations, and forced labor) or follow the example of South Africa and concentrate on peace and reconciliation instead. The United Nations and other players in the international community believe that an international tribunal (like Nuremberg) is the answer to bring justice to those involved in the Cambodian war atrocities and genocide. For many leaders of Cambodia, however, reconciliation and economic growth are seen as the answer to dealing with Cambodia's oppressive past. But for many of the Cambodian people, they believe that a trial would be the best answer. At present, there is no longer a threat from the Khmer Rouge, and yet, a number of problems still loom on the horizon. The Cambodian governrnent is beset by corruption, and human rights groups have noted several incidents of severe abuses, including assassinations and torture by government forces. The lack of democratic tradition weighs very heavily on the Hun Sen government. For thirty years, Cambodia was embroiled in one form of conflict or another; the legacy of the last three decades is that Cambodia's infrastructure has been devastated. Cambodia 1

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now is not the Cambodia of the past, but it is a state living under the Westphalian system of sovereign states. Cambodia's leaders want to be respected as a sovereign within the international system; they want to process the issues of the Khmer Rouge in their own fashion. For Cambodia, state building has been an extremely complex and arduous process that encompasses both a cultural and a political context in which human rights remains a challenge. What steps could Cambodia take to overcome its human rights challenges? Presently, there are many options available that can be used to approach Cambodia's particular circumstances. For instance, Cambodia could choose to follow in the steps of Allied leaders after World War II, and put on trial those who committed crimes against humanity. The Nuremberg trials had set a precedent where individuals are held accountable for crimes they have committed. Leaders of the Khmer Rouge could go through a Nuremberg type trial, here after referred to as the Khmer Rouge Tribunal, where individuals would be put on trial for the crimes which they committed during 1975-79. The Khmer Rouge Tribunal could then prosecute human rights violations of the past, serving as a deterrent to future violations. If Cambodia were to conduct a Khmer Rouge Tribunal, would the accomplishment of the ad hoc tribunal be strong enough to ensure deterrence of future atrocities in Cambodia? For Aryeh Neier, 1 a tribunal's ability to deter future crimes against humanity is unlikely. Exposing of past crimes also poses further 2

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questions, because there would need to be a reaction as how to respond to those who have committed the crimes. Should they be prosecuted and punished, or should the state accord them amnesty in an effort to reconcile prior differences and begin anew? Alternately, leaders of Cambodia could follow the same path as South Africa and set up a truth and reconciliation commission. With a truth commission, victims are able to confront those who have violated their human rights in the past. Through the commission, victims and perpetrators have the chance to have open dialogue. A Cambodian Truth and Reconciliation Commission could be used as a tool to unify the nation; enemies and strangers could share in the same history of sorrow, of pain, ofloneliness, of a national identity, to help in the process of healing Cambodia. In my research, I seek to explore the dilemma between peace and justice, between reconciliation and punishment, and the challenge to Cambodia to promote and protect vital human rights interests, while still being flexible enough to accommodate the needs of Cambodians. The research will be based on two case studies: the South African Truth and Reconciliation Commission, and the Nuremberg Trials. The South African Truth and Reconciliation Commission case study focuses on the reconciliation and reconstruction period of 1995 to the present. The case study will focus on the decisions that the leaders of South Africa chose in promoting 3

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a better South Africa and the impact that the Commission had in promoting human rights and how it applies to the situation in Cambodia. The South African case study will be used as an evaluation tool to help guide Cambodia to paths of national reconstruction. The Nuremberg case study will also be used as a tool to help human rights issues in Cambodia. In the case study, I will focus on the two different trials, taking into detail the topic of individualizing guilt as a deterrent of future human rights violations. Through the assessment of the two case studies, I propose to find a solution for Cambodia, emerging from the aftermath of mass violence and genocide to overcome its recent serious human rights violations, and to create a functioning state where the law and human rights are respected. Through the process of my research, I hope to find answers to help guide the process of bringing the Khmer Rouge to justice. By comparing the two different case studies, I intend to show why Nuremberg and the South African Truth and Reconciliation Commission might be useful to Cambodia to address its human rights issues of past, present, and future. Literature Review After years of civil war, Cambodians are presently faced with how to deal with their recent past. Not only do the leaders need to confront the issues of how to achieve justice in cases of gross human rights violations, but they also must deal 4

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with the issue that has plagued the country for twenty years, how to create a democratic state that is committed to human rights and the rule of law. Cambodian leaders have many difficult decisions to make because Cambodia presently lacks both a modem economic infrastructure, and legal institutions. In Human Rights in Political Transitions: Gettysburg to Bosnia, Carla Hesse and Robert Post take on the issues ofhow countries that have recently emerged from years of repression address violations of the past. According to the two authors, "state building is an extremely complex and arduous process that develops over a much longer time frame and within broader cultural and political contexts than those in which the human rights community has been accustomed to working."2 According to the two authors, international legal norms should not be used to force countries into establishing social orders which the international community deems appropriate. According to Hesse and Post "the international community can itself enforce legal requirements and punish crimes against humanity, as it did at Nuremberg, and it may thereby produce many highly beneficial results, but such prosecutions cannot create the rule oflaw within a nation."3 Therefore, stated Hesse and Post, the international community cannot establish the rule of law within a domestic legal system but instead it is the state that should be the major player in determining what actions should be best taken for their particular circumstances. Hesse and Post believe that the creation of a legitimate legal order must be done first at the local level. 5

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When confronted with issues of domestic concern-such as Argentina's military dictatorship which extended amnesty to itself before relinquishing power, both authors acknowledge that situations such as those are "complex" and paradoxical. As a solution to circumstances of that nature, Hestand Post propose that international norms could be used as an instrument in which to help bridge the ruler and the ruled. Accordingly, stated Hesse and Post, the job of international norms is "facilitating the most complete possible transition to a legitimate rule of law. "4 Therefore, international law should be used only as a defensible duty to punish past violations ofhuman rights in which amnesty is necessary for the achievement of genuine reconciliation and consequently of the rule oflaw."5 Mark Osiel, author of"Making Public Memory, Publicly," stated that the best way which to prevent a recurrence of massive genocide is actually to "cultivate a shared and enduring memory ofits horrors"6 According to Osiel, collective sharing of the pain would create an atmosphere of collective conscience. In Osiel's opinion, a society greatly traumatized by its recent past could be healed through the process of prosecution and judgment because these two processes would enable the citizens of the nation to engage in public discussion and in the process could create a culture of a shared memory. Osiel suggests that criminal law could be used as an instrument to create an atmosphere of collective conscience. For Osiel, criminal procedure allows the community to reassert the values of the community that have been broken by the transgressor. According to Osiel, this process would enable 6

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public dialogue between the injured and the injurer, thus creating a shared public culture amongst the members ofthe community. For Osiel, sharing openly the trial and its outcome promotes healing from past transgression within the community. Michael Feher, author of"Terms ofReconciliation," analyzes the ongoing debate about what actions should be taken against those who committed past transgression. According the Feher, there are two camps to this debate which he refers to as the "purists" and the "pragmatist."7 The purists, stated Feher, are represented by non-governmental groups such as Amnesty International and Human Rights Watch, which believe that prosecution is the best choice. For the purist camp, democratically elected government leaders not only have the authority to promote the prosecution of past abuses, but they also need to in order to prevent past human rights violators from feeling a sense of privilege. Leaders also must provide some other venue for the victims than vengeance. Conversely, the pragmatists, according to Feher, suggest that amnesty is a better long-term strategy. Feher notes that although both sides agree that countries plagued by human rights violations of the past should promote the rule oflaw instead of vengeance, they disagree on the ways to ensure that each individual is for his or her own actions. In this case the pragmatists utilize immunity as a tool to ensure a stable political atmosphere. According to the pragmatist argument, prosecuting human rights violations might undermine social and political 7

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stability in the countiy. If granting amnesty to the violators would advance national reconciliation, then leaders should pursue it. Feher suggests the debate between purists and pragmatists is essentially the same. Both purists and pragmatists want to provide guidelines that nascent democracies should follow in order to prevent a return to their violent past, only they disagree on the proper course which countries should take. According to Feher, both purists and praginatists have done an appalling job in defending international human rights. For Feher, human rights remain a subject that states, as well as defenders ofhuman rights, will use for the advancement of their own selfinterest. The Nuremberg Trials, which are considered to be the ideal model for the purists, are often used as a model that present leaders of nascent democracies are encouraged to follow. From .1945-46, twenty two individuals and seven groups of the Nazi regime were put on trail for crimes committed against that of peace, war, and humanity. It was hoped by many of the Allied leaders that the Nuremberg Tribunal would establish a system oflaw and order among nations also facilitating the political rehabilitation of Germany. Nuremberg's accomplishment fell short of what its creators had desired. Leo Kahn, author ofNuremberg Trials, states that Nuremberg did accomplish the mission that it set out to do-that is, to provide some level of justice to the victims of the Nazi regime. According to Kahn, the Nuremberg Trial's were highly successful in meeting the demands of such atrocious violations as crimes 8

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against that humanity faced the Allies in those concentration camps in Germany. For Kahn, each of the individuals convicted deserved the appropriate sentence given because the accused were convicted under the rule oflaw.8 Henry L. Stimson, writing his assessment on the judgment of Nuremberg, also believed the Nuremberg Tribunal was essentially fair. In fact he actually thought that the individual judgments were too lenient. In a passage from his assessment, Stimson states the following: Ifthere is a weakness in the Tribunal's findings, I believe it lies in its very limited construction of the legal concept of conspiracy. That only eight of the 22 defendants should have been found guilty on the count of conspiracy to commit the various crimes involved in the indictment seems to me surprising. I believe that the Tribunal would have been justified in a broader construction ofthe law of conspiracy, and under such a construction it might well have found a different verdict in a case like that of Schacht. 9 RA. TH. Klefisch, a German attorney at law in Cologne, concluded that the Nuremberg proceedings were impartial, loyal to their mandate, and served a sense of justice, but they were also a trial which "has no equal in the history of nations.1Klefisch concludes that only those who were actually involved in the court proceedings, who read all the transcripts, and who contributed all their time and energy to be involved in every aspect, of the tribunal should be entitled to criticize the proceedings. 9

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Michael Manus, in his book, The Nuremberg War Crimes Tria/1945-46: A Documentary History, like Kahn believes that Nuremberg is a great lesson which future countries could learn. At its best moments, Nuremberg set an example for a kind of historical judgment-impartial, but not necessarily dispassionate; fair minded, but not without moral compass; searching in its quest for truth, while recognizing the formal limitations that attend to the endeavor in an adversary proceeding. Nuremberg was not perfect, by any means, and it is possible to believe that is warts and blemishes-or even its structural faults-may be the most important things to discuss today.11 For Marrus, the lesson learned from Nuremberg should be remembered to prevent another catastrophe in the future. Telford Taylor, in The Anatomy of the Nuremberg Trails, also found that the legacy of the Nuremberg trials is complex. According to Taylor, Nuremberg actually operated as a "synecdoche for all post-World War II war crime trials."12 The South African Truth and Reconciliation Commissions (TRC) is an example that is often used on the pragmatist side. The truth commission took a different approach to that of Nuremberg. Under the Commission, reconciliation was the basis from which to promote a peaceful future. The South African Truth and Reconciliation Commission was used as a means to expose crimes of the past about white supremacist rule by granting amnesty to those who were willing to confess crimes that they committed during the apartheid period. Leaders of South Africa saw the Truth and Reconciliation Commission as the most effective ways in which 10

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to mend to wounds ofthe past in order to be able to move forward and put its past behind. In Truth and Reconciliation in South Africa: Attributions of Blame and the Struggle over Apartheid, author James Gibson examines the South African Truth and Reconciliation Commission asking the question of whether or not ordinary South Africans accept the Commission assumptions that reconciliation would be accomplished through truth telling. Gibson's research is based on the presupposition that knowledge promotes forgiveness and therefore reconciliation flows from the truth. In his research, Gibson concludes that the presuppositions underlying the truth and reconciliation process are actually incompatible with the ways in which ordinary South Africans attribute blame.13 Tinyiko Sam Maul eke, author of "Can Lions and Rabbits Reconcile(management of past violence)," takes on the issues of reconciliation and truth telling and the effects it has on South Africans. Mauleke writes from a native perspective on the South African Truth and Reconciliation Commission, using the fable of the rabbit and the lion as lessons which South Africa is facing. For Mauleke, the Truth Commission failed in its purpose to bring true reconciliation for the black people of South African. According to Maul eke "there are many other ways in which South African blacks feel cheated.''14 In the following passage, Mauleke talks about the issues which South Africa faces: 11

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How can there be reconciliation while the gap between the rich and poor is not only widening, but also retaining its essentially racial nature? How can there reconciliation amidst such violence? The South African media has never tired of reminding us that we are arguably the rape capital of the world15 For Mauleke, the Truth and Reconciliation Commission failed to accomplish its original intentions and therefore should not be considered in any way a success story. Mauleke cautions other countries not to use South Africa as an example for their individual countries. We must be cautious not to claim as a model either the South Afiican transition from apartheid to democracy, or its attendant TRC process. The temptation to make the South Afiican TRC both a model and a success story on the African continent is a great one, seeing that a significant part of the resolution and peace making. Contrary to certain claims-sometimes quite lofty-about the success of the South Afiican TRC, the phenomenon is not, and probably never will be, a clear, unambiguous, uncontested, "success story."16 But even though Mauleke warns that the South Afiican Truth and Reconciliation should not be used as an example to the world, he does not provide an alternative, successful model. Mauleke criticizes the inability of the TRC to call on leaders and thinkers to account for their roles during the apartheid period process, but refuses to acknowledge any positive aspects the Truth Commission had in South Afiica in its process to move beyond its history of human rights violations .. In the end, Mauleke praises Nelson Mandela and Archbishop Tutu for their roles in the Truth Commission. According to Mauleke, it is only these two leaders which brought the 12

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TRC any success. For Mauleke, the human factor is what he considers to be the most essential ingredient in helping South Africa transition into a democracy. Outline In chapter two, I start with a background of the Khmer Rouge rule from 1975 to 1979: addressing the hardship that the people of Cambodia faced during those four years and the enduring impact that period has had on the Cambodian people. My research concentrates on the years from 1975 through to present day, focusing on the evolution of human rights in Cambodia and the challenges faced during the period of the Khmer Rouge rule. It also takes a detailed look at the effects of Khmer Rouge rule on present day Cambodian and their perspective on human rights as well as what Cambodia needs to overcome its history of human rights abuses. A potential problem of this research is the political instability of Cambodia. Because Cambodia's political system is fairly new, Prime Minister Hun Sen may not be able to promote democracy within the country. He may revert to a military or oligarchy nile. If Hun Sen, who some say is a puppet of Vietnam, is encouraged by the Communists not to follow through, then Cambodia, and all it has been trying to achieve, will be doomed, and human rights may be put to the wayside once more. Chapter three discusses the South African Truth and Reconciliation Commission created in 1995. The Commission charged with extending complete legal immunity to those who had committed crimes associated with a political 13

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objective in the course of the conflicts in the past, was willing to offer full disclosure of all relevant facts. The objective of the Truth and Reconciliation Commission was made to secure the foundation for the people of South Africa, and transcend the division of strife of the past. Chapter three provides a general overview of the Truth and Reconciliation process in South Africa, and the lessons that can be learned from it. Chapter four discusses the importance of individualizing guilt. In places like the former Yugoslavia where there is a history of brutal cycles of violence, exposing the perpetrators is an important step in preventing repetitions of massive human rights violations. Without justice, and without acknowledgment, future evil leaders will more easily be able to manipulate historic grievances. By individualizing guilt, criminal prosecutors at Nuremberg were able to give voices to the victims as well as obtain justice for hwnankind through a tribunal established by the Allies acting on behalf of the whole international community of nations. The accomplishments of Nuremberg and how it relates to future international tribunals will be addressed in this. chapter. Chapter five analyzes both Nuremberg and South Africa within the Cambodian context. Should Cambodia have either a Nuremberg style trial, or a truth and reconciliation commission? Chapter five gives a range of opinions from Human Rights Watch, to South East Asian leaders, from the United Nations to 14

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Cambodian Prime Minister Hun Sen, on what should be done in the case of massive human rights violations and how it all fits within Cambodian domestic concern. Chapter six concludes with what I believe Cambodia needs to do to overcome their present human rights problems. The recommendation in Chapter six takes into context all the political arguments on how to address human rights violations and concludes with both a realist and idealist version of what Cambodia should do in order to overcome their human rights challenge. Conclusion For a country emerging from a period of violent oppression such as Cambodia, the challenges of punishment, reconciliation, and creating a culture of law are often very complicated. After twenty years of human rights abuses in Cambodia, issues such as personal rights will be often pitted against what the leaders of Cambodia consider to be for the greater public good. At times, the leaders might make the decision that forgiveness would be better than punishment, or that the interests of the present are more important than that of the possibilities of the future, or that national culture overrides that of international norms. What should Cambodia do when faced with how to address its past human rights violations? The following research will try to address what models are best for Cambodia in its path towards reconciliation. 15

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1 Aryeh Neier, Rethinking Truth, Justice, and Guilt after Bosnia and Rwanda, in Carla Hesse and Robert Post, eds .. Human Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), pp. 39-52. 2 Carla Hesse and Robert Post eds., Human Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), p. 23. 3 Ibid., p. 18. 4 Ibid., p. 19. s Ibid., p. 21. 6 Mark J. Osiel, Making Public Memory, Publicly, in Carla Hesse and Robert Post, eds., Human Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), p. 217. 7 Michel Feher, Terms of Reconciliation, in Carla Hesse and Robert Post, eds., Human Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), p. 325. 8 Leo Kahn, Nuremberg Trails, (New York: Ballantine Books, 1972), p.7-159. 9 Henry L. Stimson, "Nuremberg: Landmark in Law," Foreign Affairs, December 25, 1947. 10 "RA. TH. Klefisch, Thoughts about Purport and the Effect of the Nuremberg Judgment, in Wilbourn E. Benton and Georg Grimm, eds., Nuremberg: German Views of the War Trails, (New York: Southern Methodist University Press, 1955), pp. 201-211. 11 Michael R. Marrus, The Nuremberg War Crimes Triall945-46: A Documentary History, (Boston MA: Bedford Books, 1997), pp. 243-254. 12 Telford Taylor, The Anatomy of the Nuremberg Trials, (New York: Little Brown, 1992), pp. 5-45. 13 James L. Gibson, "Truth and Reconciliation in South Africa: Attributions of Blame and the Struggle over Apartheid," American Political Science Review, September 01, 1999. 14 Tinyiko Sam Malueke, "Can Lions and Rabbits Reconcile? (management of past violence)," Ecumenical Review, April 01 200l IS Ibid., p. 4. 16 Ibid., p. 7. 16

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CHAPTER2 CAMBODIA'S CHALLENGE TO HUMAN RIGHTS To recognize the complexity of Cambodia's situation and the challenges which Cambodians and the international community face today, it is important to put Cambodian development into a historical perspective and to briefly review the complex factors that continue to affect the process of reconstruction and development. The following is a brief look at past and present challenges to human rights development in Cambodia. The Past 1950-1969 The tendency to focus on the horrors of the Khmer Rouge rule between 1975 and 1979 obscures the fact that Cambodians have never been protected from arbitrary rule.1 Prince Norodom Sihanouk himself did not promote human rights during his reign of power. In 1941, the French installed nineteen-year-old Prince Norodom Sihanouk to dominate Cambodian political life; little did they know that he would dominate Cambodian politics for over five decades. Sihanouk, who understood that the best way to strengthen his own position was to emerge as a champion of Khmer nationalism against the French, succeeded in winning 17

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Cambodian independence from France in 1953.2 But like the French and all other Cambodian rulers before him, Sihanouk prevented an independent political class from developing in Phnom Penh. He tolerated no intermediaries. 3 During the 1950s, Prince Sihanouk frequently arrested and charged political opponents with treason if they dared to question his policies. According to Bruce Sharp, author of The Bayan Tree: Untangling Cambodian History, Sihanouk's inability to govern eventually lead to his being overthrown in 1970 by his Prime Minister General Lon Nol. Sharpe describes rule under Prince Norodom Sihanouk as follows: Prince Norodom Sihanouk had led Cambodia since its independence from France in 1953. Formerly, the King, he abdicated the throne in 1955 to run in elections for head of state, and he had survived on the political stage through a mixture of political acumen and ruthlessness ... Sihanouk's autocratic style of governing was beginning to alienate the better educated elements of Khmer society. The opposition from the left was particularly vocal, and Sihanouk began to rely more and more on repression to quell dissent. .. Many Cambodians were losing patience with Sihanouk; they resented the corruption of his regime and his repression of dissent.4 According to Sharp, as government-sponsored violence became widespread and remained unpunished, the fabric of Cambodian self-confidence began to unravel. As a reaction to the coiruption, Cambodian students and professionals were compelled to join forces with guerrillas of the Communist Party of Kampuchea in the jungle. 18

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1970-1975 In March of 1970 Sihanouk was overthrown, in a right wing coup d'etat led by his prime minister, General Lon Nol, who had the support ofthe United States. Under the rule of General Lon Nol, Cambodia hardly became anymore democratic than under Norodom Sihanouk. In the spring of 1970, Lon Nol organized anti Vietnamese demonstrations across Cambodia and gave the Vietnamese an ultimatum to leave Cambodia or face an attack.5 The General soon proved to be incompetent both as a military leader and as a chief of state. The corruption within his administration was worse than that under Sihanouk, and many Cambodians began to believe that the country would be better off under the Khmer Rouge. According to David Chandler, author of Facing the Past: Selected Essays, 1971-1994; Cambodian peasants believed that Sihanouk was their rightful ruler. Even though Sihanouk ruled with an iron hand, the Cambodians of the countryside loved him. Cambodians were accustomed to singular, autocratic leadership. Like the Chinese, most rural Cambodians traditionally saw their leaders as having a "mandate from heaven." Throughout the history of Cambodia, leaders would have the loyalty of the people until someone more powerful could come along and removed the previous leaders, thus demonstrating that the mandate from heaven had shifted to him. Sihanouk, angry over being de-throne, claimed that he still had the love of his people, decided to side fully and uncritically with the North Vietnamese and the 19

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small group of Cambodian communists, whom he referred to as "les Khmer Rouges." 6It was a disastrous decision. Sihanouk's endorsement immediately provided the communists the nationalist appeal they could never otherwise have won. Over the next five years, warfare would destroy Cambodian society.7 1975-1979 In 1975, when Pol Pot's Khmer Rouge came into power, they were greeted with joyous celebration.8 The people of Cambodia were not supporters of the Khmer Rouge, but they were greatly relieved that the five years of civil war had finally come to an end. Cambodia was finally at peace. When the Khmer Rouge took over Cambodia's capitol, Phnom Penh, and began their own social reorganization plan-emptying the cities, breaking up families and communities and uprooting them from their traditional occupations and origins-hope quickly turned to fear. The process was accompanied by the killing of members of the previous government and military group and their families. Khmer society was being re invented. The Khmer Rouge proclaimed the beginning of their rule to be "Year Zero."9Just like China before 1911, two thousand years of Cambodian history had come to an end. Soon the purges extended to merchants and the intelligentsia, including teachers and students. Ethnic minorities and religious clergy were also targeted. Thousands more were killed, often after severe torture. In a passage from 20

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Cambodian Darkness: In this century, there has probably been no other revolution which so completely altered the lives of an entire population. Literally overnight, entire cities were emptied. Property was abolished. Money became worthless. Homes and families were destroyed. Every aspect of every life was suddenly dictated by the new government. There was no transition period; hundreds of thousands of people ... store clerks, factory workers, taxi drivers, cooks ... suddenly became farmers. Thousands were executed immediately. Overnight, Cambodia became a nation of slaves. For every Cambodian old enough to remember the events of 1975 to 1979, the Khmer Rouge reign would mark a turning point in their lives.10 The Khmer Rouge wanted to create a new class-free society in which only the .. Khmer" identity would be allowed to exist. 11 The project to establish a uniform society thus greatly affected ethnic minority groups. Altogether, about 300,000 people were actually murdered, while another one million starved to death. Pol Pot's Khmer Rouge killed between 1.6 and 2 million people, a fifth of Cambodia's population, through executions, starvations, and exhaustion from overwork.12 The process ended only when the Khmer Rouge was overthrown by an invasion by Vietnam. The Present The 1970s will long be remembered by most Cambodians as years of unprecedented horror and suffering. The war and the Khmer Rouge (KR) brought about the total devastation of Cambodia and its people, turning the social, economic, 21

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and political, development cycle back to Year Zero. The most tragic events ofthis period were the decimation of a quarter of the population and the unraveling ofthe fabric of society. Although the situation has improved since the overthrow of the Khmer Rouge regime in 1979, the improvement has been unsteady and relative. In 1993, the United Nations Transitional Authority in Cambodia (UNT AC) signaled a new start for Cambodia. For the first time in twenty-five years, UNTAC was able to bring hope to the Cambodian population. But with the withdrawal ofUNTAC in 1994, Cambodia returned to its previous state oflawlessness. In a passage from William Shawcross's Cambodia's New Deal, Shawcross depicts present day Cambodia: Cambodia today is still a semi feudal country, a place of bargaining, survival, and lawlessness. It is a state of patronage, where anyone who defies his or her patron is immediately labeled enemy or traitor. Ifthe country is to benefit in the long term for the U.N. presence, social and governmental institutions must now be developed and the beginning of a civil society nurtured and protected ... Cambodians require a period of social peace for fundamental change: a time in which political dialogue can be institutionalized, human rights developed and protected, the physical environment both preserved and rebuilt, and the lives of the poor peasantry improved. 13 According to Shawcross, the processes of nation building and the completion of the process of national reconciliation will likely take Cambodia decades before Cambodia can build a viable government. 22

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Craig Etcheson, in his observation on the condition of Cambodia, stated that even today, following the end ofthree decades of civil war, "human rights still remain more a theoretical aspiration than a reality for the vast majority of Cambodia's population."14 According to Etcheson, the Cambodian judicial system remains fundamentally unreconstructed from its authoritarian roots where a culture of impunity amongst the elite segments of society is still able to prey at will on the society at large. The most glaring and exemplary of human rights issues in Cambodia today is the fact that after perpetrating one of the worst genocides in history, not a single Khmer Rouge leader has been brought before a court of law to answer for those crimes. And after the defection of two of the last remaining leaders of Cambodia's Khmer Rouge guerrilla group in 1998, there is now an intensifying international debate over whether they should be brought to justice. Emotions for an international trial run deep for the citizens of Cambodia. The government's position, supported by a significant portion of the Cambodian population believes that retired Khmer Rouge leaders would rise up against the current government if there were an international trial. But the majority Cambodian opinion, backed by the bulk of Khmer intellectuals, opposition politicians, and the international community, dismisses this argument and says an international tribtmal is necessary to cleanse the country of its 25 years of genocide. Prince Norodom Ranariddh, head of the Cambodian Assembly stated as follow: 23

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"In my opinion they (KR) must be tried. The Khmer Rouge are well known for genocide and for crimes against humanity."15 Prime Minister Hun Sen in response to the Prince first stated that it would be better to bury the past and that any trial would be disruptive to the process of reconciliation. But later when confronted with mounting outrage, he clarified that while he favored the punishment of Khmer Rouge leaders, it was up to the courts and not the politicians to prosecute the men.16 Sam Rainsy. Leader ofthe opposition party, stated that the government is afraid of a free and fair Khmer Rouge genocide trial because it would expose criminals from within its own ranks. "The old and the new Khmer Rouge are joining hands together, and criminals are protecting the interest of criminals."17 When asked about the subject of putting their former leaders in front of a tribunal, ex-Khmer Rouge troops said that they are not afraid to face charges of crimes against humanity. Suong Sikoeun, spokesman for the Democratic Nation Union Movement (DNUM), rejected allegations that genocide contributed to the deaths of 1. 7 million people during the reign of Pol Pot in the late 1970s adding that the former leaders of the Khmer Rouge were not a pivotal force b_ehind the deaths.18 At present, negotiations still continue between the government and the UN over the establishment of a tribunal to bring to justice those suspected of gross human rights violations during the period of Khmer Rouge rule. After the rejection by the Cambodian side in 1999 of an international tribunal, a new compromise 24

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solution of a trial under Cambodian law with international participation is still being debated. Conclusion The human rights challenges in Cambodia are highly complex. Presently, the country faces the problem of impunity that continues to have an adverse effect on the lives of Cambodians. The Cambodian judicial system remains weak and far from independent, numerous court decisions are influenced by corruption or apparent political influence. The lack of confidence in the judicial system and the police has led to an increase in vigilante killings, and according to human rights monitors and the local press, there were numerous reports documenting mob killings of alleged criminals. People of ethnic Vietnamese descent, and ethnic minorities remained at risk of human rights violations. Vietnamese refugees in Cambodia in particular were vulnerable to arrest, detention and forcible return. In my opinion, the people of Cambodia have lived through centuries of abuse without any justice given to them. After years of unrest, Cambodians can at least have a chance to undo all the political injustice done to them during Khmer Rouge rule. Through a Cambodian Truth and Reconciliation Commission, Cambodians would have the opportunity to face their aggressors and demand acknowledgement for the crimes committed during the mid 1970s. Through the creation of a Truth and Reconciliation Commission, victims as well as perpetrators 25

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would be able to tell their story without fear of retaliation. The Cambodian Truth and Reconciliation Commission, would provide an open discussion of the Khmer Rouge period and for the first time victims and perpetrators would come together and confront the old crimes of the past, bringing it to .light to be judged by everyone. After the truth commission, I believe that Cambodia needs to create a legitimate legal order in which it is capable of imposing punishment. With the creation of a strong legal order, Cambodia would be able to punish those for present and future human rights violations; not only would Cambodian laws be upheld and respected, it would also create national legitimacy for the Cambodian legal system. But how can Cambodians go about undoing all the injustice done to them in the past? And how can Cambodia go about creating a legitimate legal order? In order to answer these two questions, I am going to look at two case studies: the South African Truth and Reconciliation Commission, and the International Military Tribunal at Nuremberg. The South African Truth and Reconciliation Commission and the International Military Tribunal at Nuremberg were chosen for their unique experience in dealing with past human rights violations. The following chapters will outline the history of the South Afiican Truth and Reconciliation Commission and the Nuremberg Trials, discussing the historical importance of the two case studies in the advancement of human rights. Chapter three discusses why South Africa chose to award amnesty, even extending to crimes against humanity, to justify the need to 26

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recover the truth, and how these choices effects nascent democracies overcoming their own human rights violations. Chapter four discusses the Nuremberg trial and the importance of making individuals accountable for the choices in which they make. The lesson learned from these two cases will be used to draw a structure in which I believe would help Cambodia overcome its human rights challenges. 1 David Chandler, A History of Cambodia, (Boulder, CO: Westview Press, 2000), pp. 1-60. 2 World War II: and the Seeds of Independence. [Online] Available. http://sunsite .ust.hk/edweb/sideshow/history/seeds.html. March 2, 2000. 3 Ibid., pp. 2-3. 4 Bruce Sharp, The Bayan Tree: Untangling Cambodian History, http://users.aol.com/bsharp26/cambodialbayanl.hbnl. November 30,2000. 5 The Coup: Opportunities for Nixon and the Khmer Rouge. [Online] Available., http://sunsite .ust.hk/edweb/sideshowlhistory/coup.html. November 30, 2000. 6 David Chandler, A History of Cambodia, (Boulder, CO: Westview Press 2000), pp.61-150. 7 Wilfred, Deac, Road to the Killing Fields: The Cambodian War of 1970-1975, (College Station: Texas A&M University Press, 1997), pp. 1-120. 8 David Chandler, Facing the Cambodian past: Selected Essays, 1971-1994, (Chiang Mai: Silkworm Books, 1998), pp. 5-60. 9 This is the era also known as the "Killing Fields" where more than a million people had lost their lives. 10 Beauty and Darkness: The Odyssey of the Khmer People. [Online] Available. htto://member.aol.comlbsharp26/Cambodia/ November 30, 2000. 11 David A. Ahlin, The Cambodian Agony, (Armonk, New York: M.E. Shaipe, 1987), pp. 6-25. 12 Hundreds or thousands of people died of starvation and diseases related to malnutrition. Ultimately more than a million and a half died in a population of just over seven million. 13 William Shawcross, Cambodia's New Deal, (Carnegie Endowment for International Peace: Library of Congress Catalog 1994), pp. 1-4. 14 Craig Etcheson, Human Rights in Cambodia: Intro to Human Rights in Cambodia. (Online] A vialable. http:/ /www.derechos.org/human-rights/seasia/doc/camintro.html, December 18, 2000. 15 Ranarridh calls for Khmer Rouge Trail. (Online] Available. http://www .camnet.com.kh/ngoforum/aboutcambodia'Resource Files/Tribunal/ranarridh calls for khme.html. June 1, 1998. 16 http: thesatr.com.my/news/storyxJOOO.asp?file 17 Cambodia 'afraid ofKluner Rouge trial [Online] Available. http://thestar.eom.my/news/story, August 29, 2002. 18 Agence France-Presse Khmer Rouge leaders ready to face trials, says spokesman Global Nation August 14 2001. 27

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CHAPTER3 SOUTH AFRICAN TRC History In an effort to put its past behind it, South Africa, in 1995, created a Truth and Reconciliation Commission (TRC) to document huinan rights abuses under the apartheid system and to grant amnesty to those that were willing to confess their political crimes.1 The Commission understood that if reconciliation was to have a chance, a strong human rights culture needed to be developed, and so the New South African government looked to the Truth Commission as a way to transition from an apartheid state to one that respected the rule oflaw. The purpose for the Commission was to promote reconciliation in South Africa's divided society through truth about its past. One of the goals of the Truth Commission was to ensure that there would be no repetition of the past. In order to accomplish that goal, the TRC took on the task of uncovering the whole truth and not just portions of it. The South African TRC therefore recognized that truth telling not only meant acknowledging those who were a part of the apartheid system as well as all acts of violence that happened during that period. To qualify for amnesty, applicants had to prove among other things that the crimes that they committed were politically motivated. The perpetrators did not have to apologize for the crimes committed to be considered 28

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for amnesty as long as they give a full disclosure of the truth. 2 On October 29, 1998, the TRC presented its final report. After more than two years, it had taken more than 20,000 statements from individual victims of human rights abuse, and received more than 7,000 applications for amnesty.3 It rejected 5,500 requests for amnesty while granting only 1,200 pardons. Its final report not only recommended reparations for 18,000 South Africans who were victims of apartheid but the Commission also found that the state in the form of the white South African government was the primary perpetrator of gross violations of human rights in South Africa from 1960 to 1994. The 1 ,200 pardons that the TRC granted amnesty were crimes associated with political objectives. The 5,500 requests that were rejected were considered acts committed for personal gain, or done out of malice. The TRC final report is considered to be unprecedented in human rights history in that it had accomplish to reconcile South Africa through the use of truth telling. James Gibson, author Troth and Reconciliation in South Africa: Attributions of Blame and the Struggle over Apartheid, questions whether truth telling in fact helped to bring about reconciliation for South Africa. According to Gibson, ordinary South Africans do not believe that knowledge promotes forgiveness or that reconciliation will flow through truth telling.4 Tinyiko Sam Maluleke, a native South African, also questions whether the South African Truth and Reconciliation Commission had accomplished its goal in promoting unity in the country through 29

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the use of truth telling. Maluleke sees the South African TRC as a consequence of compromise. In order to have peace during the transition from that of minority rule to that of majority rule, stated Maluleke, Nelson Mandela, South Africa's first democratically elected president, chose amnesty as an answer to South Africa's violent past.5 Maluleke felt that the TRC had failed in its promise to reconcile the people of South Africa because not only was it unable to provide an advantage to the victims of apartheid, but it also failed because the task that the TRC commission was bigger than it could handle, thus it was not able to act upon its mandate very clearly. Archbishop Desmond Tutu, chair of the South African Truth and Reconciliation Commission, stated that "forgiveness is at the heart of what God expects of his children,"6 But unfortunately for Bishop Tutu and the others from the faith community who were hoping that victims would forgive their victimizers after hearing the truth, that forgiveness did not happen universally. Many South Africans are angry that the perpetrators of human rights abuses under South Africa's last white government can be granted amnesty if they make a full confession of their crimes without showing any remorse for what they did. Ntsiki Biko, the widow of Stephen Biko (he was the leader of the Black Consciousness Movement who died in police detention in 1977), went to the Constitutional Court to challenge the provision for amnesty, arguing that it deprived 30

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South Africans of their constitutional right to justice.7 Although she failed, there are others who believe that the guilty should spend their lives behind bars. 8 Other South Africans are asking how much reconciliation has been achieved by exposing the truth from South Africa's dark past. Marius Schoon, whose wife and daughter were killed by a package bomb sent by agent Craig Williamson, stated that he failed to see any admission of guilt on the part of the oppressors. 9 According to Schoon, former president F.W. de Klerk did not apologize for maintaining the apartheid system. Because for de Klerk, the apartheid era was not wrong and therefore he need not apologize for his actions as well as the actions of the previous National Party govemment.10 The spirit of generosity and reconciliation ... was not matched by those at whom it was mainly directed. Despite amnesty provisions extending to criminal and civil charges, the white community often seemed either indifferent or plainly hostile to the work of the Commission ... with rare individual exceptions, the response ofthe former state, its leaders, institutions ... was to hedge and obfuscate. Few grasped the olive branch of full disclosure.11 For Shoon, de Klerk's unwillingness to admit that his former policies contributed to the apartheid system ruined any chance for reconciliation to take place. What most people don't understand is that the South African Truth and Reconciliation Commission was never meant to punish people, its mandate was to expose the crimes that people committed under apartheid, stated Charles VillaVicencio, national director of research for the TRC. Charles Villa-Vicencio says that the purpose of the Truth Commission is not to punish the perpetrators but to 31

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bring to light the crimes in which they committed in the past. 12 The victimizers thus have to live with the knowledge that the community is aware of what they did in the past. Any person of conscience who admits to their own cruelty must face their own worst fears themselves. This should create a culture where human rights awareness could be cultivated.13 Walter I. Zeichner, on his thoughts on the Truth and Reconciliation Commission, stated that the TRC did a wonderful job in providing the atmosphere where communication through truth telling is able to heal the nation of South A:fiica. According to Zeichner, it is in "the truth that healing becomes possible."14 Former Methodist bishop Peter Storey also agrees with Zeichner, stating that no matter if amnesty applicants were remorseful or not, disclosure meant at least acknowledging the truth about what happened.15 Lessons Learned What lessons did South Africa's Truth and Reconciliation Commission serve in helping other countries deal with their own violent and painful past? In South Africa, the ancient tyrannical regime of the past was not defeated. The oppressed black people of South Africa had achieved liberation from the white minority rule through constant struggle. But before giving up their leadership position, the National Party and leaders of other powerful white-dominated institutions made amnesty a nonnegotiable centerpiece oftheir demand. Thus the newly elected 32

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government settled on a compromise. A transitional period was needed in order to ensure peace in South Africa, and so former President Nelson Mandela chose amnesty as a path in which reconciliation could be achieved through truth telling. Tirrough the Truth and Reconciliation Commission, we see that the TRC was able to grant amnesty that encouraged the citizens of the country to be able to embrace unity and truth, instead of trying to seek revenge. But even though the Truth and Reconciliation Commission seemed to heal South Africa from its wounds under the apartheid system, it did not do anything concrete for the victims of apartheid. As stated above, Nisiki Biko did not believe that the South African Truth and Reconciliation Commission had the authority to grant amnesty to those who were willing to confess their involvements during the apartheid period. According to Nisiki Biko, "no commission can forgive."16 According to Nisiki Biko, the South African TRC is robbing her of the chance to bring the killers of her husband to justice. Tinyiko Sam Maluleke also warned that South Africa's TRC should not be used as an example to the world. We must be cautious not to claim as a model either the South African transition from apartheid to democracy, or its attendant TRC process. The temptation to make the South African TRC both a model and a success story on the African continent is a great one, seeing that a significant part of the world is in dire need of success stories in the field of conflict resolution and peace-making. Contrary to certain claims about the success of the South African TRC, the phenomenon is not, and probably never will be, a clear, unambiguous, uncontested success story. 17 33

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Another failure of the South African TRC is its inability to call the leaders and thinkers to account for their role in the implementation of apartheid. Allowing former president F.W. de Klerk and former state President P.W. Botha not to apologize has hindered the process of reconciliation by refusing to come to terms with what happened in the past. According to de K.lerk and Botha, they did nothing wrong but follow procedure. Also, currently, President Thabo Mbeki, acting on the recommendation of his political advisors, has granted pardons to 33 prisoners, saying the men had been jailed as a direct result of the liberation struggle.18 Most of the 33 had their amnesty requests rejected by the Truth and Reconciliation Commission. Mbeki's act of leniency has caused other opposition parties to demand similar treatment for their own foot soldiers. Black and white leaders alike have renewed calls for general amnesty for anyone imprisoned for committing a political crime. Archbishop Desmond Tutu, in response to Mbeki, said that the pardons have threatened to undermine the work of the commission. But in general, the South African TRC was more successful than anything else that has been tried in the past by other countries concerning human rights violations. Even though it was not perfect, it did serve its purpose in coming to terms with its dark past. Just like in most situations where massive human rights violations are being addressed, only time will tell if the TRC was effective in being able to reconcile the South African nation. 34

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1 Lyn S. Graybill, Troth and Reconciliation in South Africa: Miracle or Model?, (Boulder, Colorado: Lynne Rienne Publishers, 2002), pp. 1-10. 2 Ibid., pp. 9-55. 3 Ibid., p.8. 4 James L. Gibson, "Truth and Reconciliation in South Africa: Attributions of Blame and the Struggle over Apartheid,"American Political Science Review, September, 1999. 5 Tinyiko Sam Maluleke, "Can Lions and Rabbits Reconcile?(management of past violence),"Eucumenical Review, April, 2001. 6 Lyn S. Graybill, Troth and Reconciliation in South Africa: Miracle or Model?, (Boulder, Colorado: Lynne Rienne Publishers, 2002), p. 32. 7 Carla Hesse and Robert Post, "Introduction," in Carla Hesse and Robert Post eds., Human Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), pp. 13-36. 8 The TRC was the first truth commission to have its powers and decisions challenged in court. 9 Mark Gevisser, "Hippie Who Became Staunch," Mail and Guardian, February, 1995. 10 Lynne Duke, "For de Klerk's Party, Apartheid is Part of a Past Best Forgotten, Washington Post, October, 1995. 11 Walter Zeichner, ''Thoughts on the South African Truth and Reconciliation Commission Final Report," [Online] Available. ht!p://www.walterzeicher.com/articles/southaf.html, Ocotober 8, 2002. 12 Lyn S. Graybill, Troth and Reconciliation in South Africa: Miracle or Model?, (Boulder, Colorado: Lynne Rienne Publishers, 2002), p. 51. 13 Jean Bethke Elshtain, ''True Confessions," The New Republic, November 12,1997. 14Walter Zeichner, ''Thoughts on the South African Truth and Reconciliation Commission Final Report," [Online] Available. ht!p://www.walterzeicher.com/articles/southaf.htrnl. Ocotber 8, 2002. 15 Peter Storey, "A Different Kind of Justice: Truth and Reconciliation in South Africa." Christian Century, September, 1997., pp. 788-793. 16 Carla Hesse and Robert Post, "Introduction," in Carla Hesse and Robert Post eds., Human Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), p.17. 17 Tinyiko Sam Maluleke, "Can Lions and Rabbits Reconcile? (management of past violence), Eucumenical Review, April, 2001., p. 7. 18 President Thabo Mbeki issued a proclamation dissolving the TRC effective on December 31, 2001. 35

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CHAPTER4 NUREMBERG TRIALS History During World War II, the victorious Allied forces were faced with issues concerning how to deal with tl].e massive atrocities committed in Gennany.1 In response to the horrors the Allies encountered during the war, the leaders made a commitment that justice would be served. On August 8, 1945, Allied leaders signed the London Agreement, 2 promising that an international trial would be held at Nuremberg under the guidance of Great Britain, France, the Soviet Union, and the United States to punish Hitler and the men around him for the crimes that they had committed before and during the war. From 1945 to 1946, The Nuremberg Trails, also known as the Military Tribunal at Nuremberg, dealt with crimes of incomparable magnitude. 3 Never before, stated Leo Khan, had the world witnessed a trial that dealt with crimes so vast in scale, and committed with such cold-blooded design, that the citizens of the world found it difficult that something that atrocious had actually happened.4 Under the Nuremberg Trial, twenty-two individual and seven groups that had been organized to carry out the Nazi programs were placed on trial.5The individual defendants were charged with not only the systematic murder of millions of people, but also with planning and carrying out the war in Europe. The indictment of the Nazi organizations was also designed so that Allied leaders could 36

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deal with the problem of what to do about the hundreds of thousands of people who had been members of organizations such as the SS and the Gestapo. What the Allies wanted to do was to find them to have been criminal organizations, and then afterwards hold hearings to determine the extent to which a member was guilty.6 The evidence that the Allies presented consisted almost entirely of the words and documents of the Nazis themselves. During the investigation, the U.S. and British investigators had discovered literally tons of documents which proved the charges against the defendants. The decision thus was made to rely on the words of the defendants themselves in the trial. The Allies charged the defendants with four types of crimes: conspiracy against peace, crimes against peace, war crimes, and crimes against humanity. 7 A result of the Nuremberg Trials was the newly developed concept ofhuman rights. World War II was the primary stimulus in which the contemporary concept of human rights came into being. Because the Holocaust and other Nazi atrocities could not go unpunished merely because they had been legal under the German system, the introduction of the novel concept of "crimes against humanity'' provided a basis for international law. For the first time, at the trials at Nuremberg, the leaders of government were brought to trials on the charge of not only starting an aggressive war, but also for the systematic genocide ofthe Jewish population. The Allied nations responsible for conducting trials at Nuremberg hoped they would' mark a great forward step in the preservation of peace and civilization. 37

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On September 30 through Octoberl, 1946, the Tribunal read its final judgment. According to the judgment, twelve were sentenced to hang, three defendants were acquitted, three others received life sentences, and the remaining four receiving sentences of ten to twenty years. 8 Even though the Nuremberg trial was referred as the "greatest trial in history,9 by the distinguished English jurists Sir Norman Birkett, there are some persons who criticized the trials as acts of vengeance by the victorious nations, arguing that there was no basis in international law for trying the German leaders on the charge of crimes against war, peace, and humanity. ''The German people were represented in Nuremberg only as mass murderers and criminals of the worst kind", 10 stated Karin Chubb and Lutz Van Dijk. The idea of a victors' justice, stated Chubb and Van Dijk, had played a prominent role in the discussions of the Nuremberg Trials. According to the two authors, the Nuremberg trial has become a legal and an emotional symbol of injustice. But according to author Leo Kahn, Nuremberg was a "genuine trial."11For Khan, Nuremberg was highly successful in providing justice. According to Khan, each of the defendants was criminals deserving punishment for the crimes in which they committed. Michael R. Marrus, also agreeing with Kahn, stated that even though Nuremberg was by no means perfect, it did provide an impartial trial.12 Supreme Court Justice Robert H. Jackson stated that Nuremberg provided a fair trial and a fair judgmenL According to Justice Jackson, the defendants got as fair a trial 38

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that they are going to get, something in which they would have never considered for another man. Justice Jackson also understood the importance of keeping history as pure as possible. Jackson cautions: We must not forget that when the Nazi plans were boldly proclaimed they were so extravagant that the world refused to take them seriously. Unless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. We must establish incredible events by credible evidence. 13 Lessons Learned What lessons can be drawn from the Nuremberg trial. As we saw in the Nuremberg judgment, the moral impact on the world should not be underestimated. The planned extermination of all Jews in central and Eastern Europe required the hands ofhundred and thousands of people. Following is Leo Khan's description of the mindset of the Germans before the end ofWorld War IT. But the systematic, protracted, bureaucratically controlled process of killing off miJlions of victims, who presented no danger and whose death brought no advantage to the killers, could only be interpreted as the manifestation of a diseased mind; and the whole German nation seemed to be affected by the disease. That nation had to be crushed into a state of impotence in which it could never do any harm again.14 According to Khan, all German citizens had some or a lot ofknowledge of the crimes that the Nazi committed. For Khan, soldiers and citizens have a moral duty to disobey cruel order or laws. Nuremberg, stated Khan, was to remind the people of 39

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the world that crime against humanity is an international crime, and those who chose to violate that law should be punished. The documents that were entered into evidence at Nuremberg told of the horrible tale that occurred during Nazi rule, which also serves as a reminder for future generations the crimes that the Nazis had committed. For Khan, the trials became a precedent setter for future offenders of international law, setting guidelines and structures for tribunals that have to address such complicated issues as human rights, genocide, reconciliation, and justice. But it has been a little over fifty years since the Nuremberg trial and yet there has been no international tribunal created to try crimes against humanity since the International Military Tribunal. No international body had been gathered to try aggressor nations or individuals accused of war crimes. Various effects have been made in the ensuing half-century, but all have languished. And only recently, with the establishment ofUN's International Criminal Tribunal that is addressing war crimes in the Former Yugoslavia and Rwanda, have that ideals set at Nuremberg taken a substantial form. So which paths should nations take when they are faced with addressing crimes of the past? In South Africa, the issue of justice is complicated because of their recent past. For South Africa, to ensure that democracy would have a chance to grow, building a strong infrastructure was more important than giving justice to the victims of the past; but both Hesse and Post also bring up the issue that the cries of those victimized should be heard. The transition from being a country enslaved 40

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in gross violation of human rights to a more democratic nation, to advance, it must first have a "secure foundation ... (so that) the people of South Africa could transcend the divisions and strife of the past.15" For the victorious Allies, The Nuremberg trial was chosen to meets the demands of a world face with horrors unknown before. And out of the Nuremberg, we get the basic legal principles that prevent guilty individuals from sheltering behind the abstract concept of the State. Accordingly, the concept comes from the idea that crimes are committed by men and not entities. According to Leo Kahn, Nuremberg itself was considered highly successful in that it accomplished in meeting the demands of a unique situation. 1 Allied leaders received reports ofNazi up rooting and enslaving entire populations, slaughter of political opponents, prisoner of war, and ordinary people persecuted for reasons of face, religion, and nationality. 2 Wilbourne E. Benton, Introduction, in Wilbourne E. Benton and Georg Grimm, eds., Nuremberg: Gennan Views of the War Trials, (Dallas: Southern Methodist University Press, 1955), p. 13. 3 Miurus, Michael, The Nuremberg War Crimes Trial 1945-46, (Boston MA: Bedford Books, 1997), f,P 1-4. Leo Khan, Nuremberg Trials, (New York: Ballantine Books, 1972), p. 15. s Marrus, Michael, The Nuremberg War Crimes Trial 1945-46, (Boston MA: Bedford Books, 1997), fP 5-50. January Godkin, "Origin of the International Military Tribunal at Nuremberg," [Online] Available. http://www.nuclearliles.org/ehtics/nuremberg/Ther Nuremberg Trials. htJnl. October 9, 2002. 7 Ibid, pp.51-70 8 Joshua Daniel Frankin, "The International Military Tribunal: An Overview and Assessment," 'Online] Available. http://www.iocc.com/-joshua/history/trials/trials.htrnl. September 14, 2002. H. Montgomery Hyde, Nonnan Birkett: The Life of Lord Birkett of Ulverston, (London: Hamish Hamilton, 1964), p. 504 1 Karin Chubb & Lutz Van Dijk, Between Anger: South Africa's Youth and the Truth and Reconciliation Commission, (New Brunswick: Witwatersrand University Press), p. 7. 11Leo Khan, Nuremberg Trials (New York: Ballantine Books, 1972), p. 11. 12 Marrus, Michael, The Nuremberg War Crimes Trial 1945-46, (Boston MA: Bedford Books, 1997), p. 254. 41

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13 Robert H. Jackson, The Nuremberg Case 7-8 ( 1947) 14 Leo Khan, Nuremberg Trials, (New York: Ballantine Books, 1972), pp. 9-63. ts Carla Hesse and Robert Post, "Introduction," in Carla Hesse and Robert Post eds., Human Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press, 1999), p. 17. 42

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CHAPTERS THECAMBODU\NCONTEXT International View It is well known that 'human rights' was originally a western concept originating from the experience and political philosophy ofWestem Europe. When the phrase 'human rights' carne into popular usage after the Second World War, it referred to laws protecting citizens from being abused or suppressed by their governments; The destruction ofhuman life during the Second World War had prompted the countries of the world to bring forth a document that would protect human beings from similar violations in the future. The Universal Declaration of Human Rights therefore was drafted with the goal of making human rights explicit. Jack the "Social Construction of International Human Rights," states that the very concept ofhuman rights itself proclaimed that human rights are universal and therefore have no national boundaries. Therefore, in theory, human rights are the entitlement of all men, women, and children wherever they may be. But according to Donnelly, in practice human rights are recognized or rendered enforceable varies from country to country.1Therefore it comes as no swprise, that the more democratic a government, the greater the recognition and enforceability. In 1993, China, Vietnam, Indonesia, Iran, Syria, Burma and Singapore produced the "Bangkok Declaration" for the United Nations Vienna Conference on 43

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Human Rights. In it, they demanded that human rights be addressed "in context of national and regional peculiarities and various historical, cultural and religious backgrounds. 2 While there were no doubts that the context for human rights varies from country to country, the Bangkok group went much further and simply rejected any and all criticism of government actions. Two advocators of the "Asian model," Lee Kuan Yew of Singapore and Prime Minister Mahsthir Mohamad ofMalyasia, offered a different view on human rights. For former Prime Minister Lee Kuan Yew, there is a cultural uniqueness; human rights therefore should be curtailed for the sake of economic development and social harmony.3 These claims have been greatly embraced throughout the region. In Lee Kuan Yew's opinion, most countries need discipline more than they need democracy. Lee blames the United States decline as a world leader because of excessive legalism and individual-centrism that caused the breakdown of society. Therefore liberal democracy and individual human rights are inappropriate to the political and social culture in Asia. Kim Dae Jung, iil response to Lee, states that the idea of Asian values comes from its antiWestern system, which is considered not only to be alien to that of Asian culture, but also as an attempt by Westerners to impose their values on Asian countries (a form of cultural imperialism) to be bogus. For Dae Jung, Asian values are just a response to play against the Western demand for human rights implementation and distorts their meaning in a manner convenient to its purpose. 44

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For example, agreeing on the Western concept of sovereignty, but not for human rights. Kim Dae Jung believes that both concepts of human rights and state sovereignty are closely connected; stating that it is the principle of sovereignty protects minor and weaker states against the oppression of major and hegemonic states, just as human rights protect weaker individuals and minorities against stronger political and social forces.'"'Dae Jung blames developing countries (such as Cambodia under the Hun Sen government) that use state sovereignty as a shield to protect themselves from other countries response to their human rights violations. \ Dae Jung ends with the belief that human rights are the moral basis for sovereignty. Human Rights Watch, and Amnesty International, two strong advocators of human rights development, says that Cambodia needs to be observed closely. According to the two non-governmental organizations, Cambodia needs to follow through with the Khmer Rouge Trials in order to stop current human rights violations.5 Impunity remains at the central of Cambodia's human rights problems.6 According to Amnesty International, in the vast majority of cases where agents of the state were implicated in involvement in human rights violations, no action was taken against them. Human Rights Watch in particular believes that cultural relativism is used only by countries in which who don't want outsiders to intrude with the policies of their countries. The United States, Britain, Japan, Australia, and France have all issued strong statements saying that leaders of the Khmer Rouge must be held accountable 45

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for their actions. Under the United Nations, these countries having been striving for a Khmer Rouge trial since 1998, when the two top leaders of the Khmer Rouge (Khieu Samphon, and Noun Chea) surrendered to the current Cambodian government. At present, the Cambodian judicial system remains weak and far from independent, numerous and court decisions are influenced by corruption or apparent political influence. UN Secretary-General Kofi Annan stated that the UN will not hold a trial unless it holds up to international standards. According to Kofi Annan, the Cambodian justice system is under Hun Sen's control and is ill equipped to handle a Khmer Rouge triat.1 And as of the present, negotiations for a Khmer Rouge trial are still being collaborated with the United Nations. 8 Cambodian View Cambodian Prime Minister Hun Sen, siding with Lee Kuan Yew, stated that not only is human rights relative, but human rights itself is a form ofwestem imperialism. For the Prime Minister, sovereignty is the only tool in which small countries like Cambodia are able to protect itself from powerful first world countries. Democracy is a stalking horse for a new colonialism. According to Hun Sen, referring to his ability to see the larger picture stated," they only worry about the welfare of a single tree, but I worry about the entire forest."10 He continues, stating that what Cambodia needs is not for outsiders to meddle in the affairs of Cambodia. The Prime Minister sees the Cambodia situation as a unique circumstance from that of the world. In Hun Sen's opinion only those who have 46

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knowledge of Cambodia's culture and customs, and has lived through the Khmer Rouge period has a say in what the country should do to overcome its past hwnan rights violations. For Hun Sen, all Cambodia needs is to put behind its past so that it can emerge into a new future by way of reconciliation. But if, that is if Cambodia was to follow through with a Khmer Rouge Tribunal, stated the Prime Minister, it would be held in Cambodia, in Cambodian courts, with Cambodian prosecutors, under domestic Cambodian laws, and with limited international involvement. Hun Sen also stated that a Khmer Rouge trial should be balanced with reconciliation. According the Prime Minister, an international tribunal would not be in the national interest, as would a peace and reconciliation commission.11 For Hun Sen, holding a trial might endanger the fragile peace that Cambodia has enjoyed since the defection of top Khmer Rouge leaders. According to the Prime Minister, the United Nations does not understand how delicate the issues of national reconciliation and the Khmer Rouge trial are for Cambodia in ensuring that another civil war will not break out again. Sam Rainsy, leader of the opposing party, disagrees with the prime minister, stating that the government is afraid to have a Khmer Rouge trial because it fears that it would expose criminals from its own ranks.12 Rainsy believed that, "the old and the new Khmer Rouge are joining hands together, and criminals are protecting the interest of the criminals."13 According to Rainsy, Cambodia needs to have a genuine Khmer Rouge Tribunal with UN and international involvement so that the 47

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conditions of ordinary Cambodians can be improved. In the following passage, Sam Rainsy questions the reason why Cambodia cannot move beyond its human rights violations. Were we demanding too much? We were demanding an independent judiciary, a corrupt free tribunal. We were protesting politically motivated decisions by our national courts and we were denouncing the power of money that distorts justice. We were condemning the powerful officials and the rich businessmen who used the courts to legalize their misdeeds. We were demanding real and biased justice for the ordinary citizens, the powerless and the poor people. We were asking for equality of all citizens before the law. Was it wrong to put forward our demand? Were democracy and what it entails in terms of rights and freedoms only a joke and were we not insightful enough to realize that it was crazy to try to exercise those rights and freedoms in a country like Cambodia? We candidly thought it was natural to start living in the light of principles enshrined in our Constitution and the Universal Declaration ofHuman Rights, which the United Nations brought to the Cambodian people immediately after the 1991 Paris Peace Accords. It was during that glamorous UNTAC era, which saw Cambodia moving out of darkness. Why didnttheytell us that it would be only a show for a briefperiod and that we should not believe too much in their story about democracy and human rights? 14 According to passage by Sam Rainsy, Cambodia is unable to move beyond its human rights violations because of its inability to overcome corruption within the system. Rainsy sees the problem of impunity, caused by the lack of neutrality and independence in the judicial and law enforcement, as the heart of Cambodia's human rights problems. For Sam Rainsy, human rights and respect for the rule of law are just dreams which Cambodians can hope to one day attain. 48

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Thun Saray, of the Cambodian Human Rights and Development Association, stated that a trial is essential. We need to provide justice for our people. We need to put an end to impunity .. .! do not want revenge against the Khmer Rouge, even though I was put in prison, my family scattered. One of my brothers was killed; a sister lost five children because of the oppression. If you say forget the past, it is unfair for the people who suffered; 15 According to Thun Saray, a trail is needed in order to be able to provide justice for the Cambodians who survived the Khmer Rouge periodL Chhen Ran, a victim during Khmer Rouge rule stated, ''we have been living all these years, waiting, and we still have no justice."16 According to Chhen Ran, Cambodia needs to have a Khmer Rouge trial in order to find justice for the people. Lao Mon Hay, executive director of the Khmer Institute of Democracy in Phnom Penh, also believes that a tribunal is necessary to overcome human rights challenges. For Lao Mon Hay, a truth commission would not work in Cambodia because in his opinion, there is no Cambodian statesman who could give such a commission its necessary moral authority like Nelson Mandela and Archbishop Tutu in South Africa.17 Mardi Seng, author of A Spirit of Survival, states that the loss of power of the Khmer Rouge has open up the opportunity for the victims to return and help rebuild Cambodia. The future is looking a whole lot brighter with the advance of political stability. The infighting amongst factions had effectively ended. They are now too busy making easy money than making 49

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difficult wars. Peace has finally prevailed after nearly decades of turmoil. The Khmer Rouge, as a political and military organization, is effectively dead. Its former senior leaders, those who are still alive and clever enough, are seeking a dark hole to hide-in order to avoid being prosecuted. A few sat in jail awaiting a trial, whimpering. They would pay for their heinous crimes in this life or the next one. They can no longer play Gods with innocent people lives as they did once. They are finished! Done! 18 We can see from the quote by Mardi Seng that the opportunity to achieve a sound legal resolution to the crimes ofthe Khmer Rouge and overcoming Cambodia's human rights challenges is close at hand. For Seng, the surrendering of the Khmer Rouge in 1998 has Cambodia the opportunity to deal with its past history. What actions should Cambodia take after thirty years of human rights violations? Should Cambodia follow through with a Khmer Rouge Trial, advocated by the United Nations, Human Rights Watch, and Amnesty International, or should it follow in the line of a truth and reconciliation commission? Or, should Cambodia take Prime Minister Hun Sen's suggestion and conduct a trial, that takes into account all of Cambodia's cultural and historical content into consideration. The following, and concluding chapter, is my personal opinion on what I believe would be best for Cambodia to move from a country full of human rights violation to a one that respected the rule oflaw. 1 Jack Donnelly, The Social Construction of International Human Rights, in Tim Dunne and Nicolas J. Wheeler, eds., Human Rights in Global Politics, (Cambridge: Cambridge University Press, 1999), pp. 71-102. 50

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2 Liu Paopu and Xiaou Qiang, "A Report on the World Conference on Human Rights in Vienna," Fall1993. 3 Fareed Zakaria, "In Conversation with Lee Kuan Yew", in Martha Meijer, ed., Dealing with Human Rights: Asian and Western Views on the Value of Human Rights, ( 2001), p. . 4 Kim Dae Jung "Is Culture Destiny? The Myth of Asia's Anti-Democratic Values a Response to Lee Kuan Yew, in Martha Meijer, ed., Dealing with Human Rights: Asian and Western Views on the Value of Human Right,.( 2001), p.98. 5 Human Rights Watch, 2002. 6 Amnesty International Annual Report, 2002. 7 Human Rights Watch, 2000. 8 "Hun Sen sees door opening on Khmer Rouge trial." (Online] Available. http://www.ing7 .net/wnw 5-l.htrn. January 12, 2001. 9 Hun Sen referring to Human Rights Watch, Amnesty International, and the United Nations 10 "I don't trust you, Cambodia's Hun SEn warns the UN." Agence France-Presse. Monday March 6, 2000. 11 "Cambodia: Hun Sen says a Khmer Rouge trial must be balanced with reconciliation," [Online] Available. http://www.ahrechk.net/news/rnianfile.php/ahrnews 200107/983, September 9, 1998. 12 "Rainsy says Government Afraid of Khmer Rouge Trail" AFP, (August, 1999). 13 "Rainsy says Government Afraid of Khmer Rouge Trail" AFP, (August, 1999). 14 Sam Rainsy Party, "Statement by Sam Rainsy, at the Ceremony Commemorating the Titird Anniversary of the Grenade Attack in Front of the National Assembly." [Online] Available. http://mekong.net/cambodia!rainsy1.htm .. June 7, 2002. 15 Dennis Coday, "UN, Others Push for Cambodia War Crimes Tribunal," National Catholic Reporter, June, 2000, p. 16. 16 "Will Justice Ever Be Served? As talks with the UN collapse. Cambodia moves to set up a Tribunal to try former Khmer Rouge Leaders. Many Fear it will prove to be a sham," Time International, April, 2000., p. 16. 17 Mark McDonald, "Cambodians welcome prospect of Khmer Rouge tribunal," KnightRidder Tribune, March, 1999., p. 990. 18 Mardi Seng, "A Spirit of Survival," (Online] Available. http://www .cybercambodia.com/dachs/stories/mardi.html., August 23, 2002. 51

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CHAPTER6 CONCLUSION Cambodia today is not the Cambodia ofthe past. Presently, it is not engaged in war, nor is it actively killing people by the millions (as the Kluner Rouge did during their rule in the mid to late 70s), but it is still heavily suffering from massive corruption, where impunity has run amuck. Cambodia is one ofthe poorest countries of Asia (even though the Cambodian economy which was virtually destroyed by decades of war is slowly recovering, 90% ofthe population still lives in poverty).1 Presently it has one ofthe highest rates ofHIV/AIDS infection in Asia2 two-thirds of Cambodians are illiterate3 and the infant mortality rate is the worst in Southeast Asia. Cambodia also remains one of the world's most heavily landmined countries.4 Unfortunately for Cambodia, it also lacks any kind oflegal background, as well as resources in which to conduct a true and fair tribunal. Thus, the burdening question still remains as how one helps a nascent country like Cambodia overcome its human rights violation when it is confronted with so many other pressing issues. But before I try to attempt to answer, I will first address the lessons learned from the previous chapters and see how these examples could help Cambodia deal with its many human rights issues. In chapter three, we see that South Africa's 52

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Truth and Reconciliation Commission was a unique experience in itself. First of all, South Africa did not go through a civil war, therefore the ancient tyrannical regime of the past was not defeated. Thus to promote a peaceful transition, President Nelson Mandela and his newly elected South African government chose the path of truth telling to help the people of South Africa to come to terms with their dark past. Unfortunately, the South African TRC did not do anything concrete for the victims during the apartheid period. The Nuremberg Trials on the other hand was more of a 'victor's justice.' Under the watchful eyes of the Allies, leaders ofNazi Germany were put on trial for the atrocious crimes that they committed before and during the war. Nuremberg was unprecedented in that for the first time, government leaders were brought to trial on the charge of not only starting an aggressive war, but also for crimes against humanity. Nuremberg was considered to be successful in dealing with a very unique situation. In chapter five, I looked at the opinions on human rights, taking into account both international and local (Cambodian context) views on how human rights violations should be addressed. According to Human Rights Watch, Amnesty International, and the United Nations, human rights is universal, therefore it has no national boundaries. Accordingly, the arguments used by China, Vietnam, Indonesia, Iran, Syria, Burma, and Singapore (also known as the Asian Model) stated that 'cultural uniqueness' should be taken into account for each country, is 53

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not considered valid for major human rights violations. Cambodian Prime Minister Hun Sen, also a supporter of 'cultural uniqueness,' believed that human rights are relative. Hun Sen believes that Cambodia should be left alone to conduct a trial if it sees fit to do so. The Prime Minister human rights as a form of western imperialism which it does not take into context Cambodia's historical background, or its cultural uniqueness. But Sam Rainsy, an opponent of the Prime Minister, disagreed, stating that Hun Sen is afraid to confront human rights violations because he fears that it would expose major human rights violators from his own party. According to Rainsy, Cambodia needs to confront past human rights violations in order to prevent new human rights violations. Thus after careful deliberation, taking all the different political views into perspective, I came to the conclusion that there is a twopart solution for Cambodia to overcome its human rights challenges. My first recommendation would be for Cambodia to proceed along the lines of a truth and reconciliation commission. Through a truth and reconciliation commission, Cambodians would be able to break the traditional compliant 'subject' culture which is marked by emotional reserve. They would be able to talk openly about the past without fear of retribution. A truth and reconciliation commission would allow the brutal stories of the Khmer Rouge period to be brought out into the open, allowing everyone to be a part of a shared history in order to heal. Therefore, through the commission, victims as well as 54

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perpetrators would be able to expose the evils ofthe past, encouraging political dialogue which is necessary for Cambodian reconciliation. In an interview with Y ouk Chhang, Chhang seeks a Khmer Rouge trial in order to bring out the truth about his experience during Khmer Rouge rule. In the following passage, Mr. Chhang explains the importance of a trial for Cambodians who survived. I think that there is no punishment on Earth, there is no punishment from heaven, that would compensate for what the Khmer Rouge has done to all of us. But the people want to know the truth that is what is significant about the trial. The genocide survivors want to be free from the past, they want to know what really happened. We have been waiting for 20 years, and for us it's as though a light bulb has been lit up in a dark room, so we can see what is inside the room. 5 According to the passage, Y ouk Chhang believes that it is only through truth telling that survivors could be free from their past. For Chhang, truth telling and justice should go hand and hand in order to create an atmosphere where Cambodians laws and human rights would be upheld and respected. In the story, The Tonie Sap Lake Massacre, Ranachith Yimsut tells his traumatizing story in which he overcomes his anger and grief by way of forgiveness. In the story, Ranachith, only fifteen had escaped death by hands of the Khmer Rouge and manages to escape to the border of Thailand and eventually to the United States. Ranachith had witnessed the deaths of family, friends, and fellow Cambodians even before he reached the ripe old age of sixteen. Fourteen years later, after years of loneliness, Ranachith came to this conclusion: 55

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We must go on, life goes on and forgiveness is the key to it all. I have also realized that revenge is not the answer to my pain and anger. It was forgiveness of the people who had hurt me, both physically and emotionally. I have never achieved inner peace until after I have forgiven the murderous Khmer Rouge. In I have to thank them for they had made me who I am today, a stronger person.6 According to the passage, the only way to reconciliation is the ability to forgive those that harms us. For Ranachith, revenge is not the answer to dealing with his pain and anger from the inflicted on him by the Khmer Rouge, but it is his acknowledgment of the crimes that was committed on his person and his ability to forgive the perpetrator is what has helped him become a stronger person. There are countless other stories of Khmer Rouge terror, and Ranachith is one of millions of voices that need to be heard. Through the guidance of a truth and reconciliation commission, stories like Ranachith can be shared. The commission would be allow truths of the past to come out without fear that retribution would be taken against them. Thus a truth commission would be the first step to help guide Cambodians into the path of reconciliation. My second suggestion is for Cambodia to create a strong judicial system independent, from corruption and political influence. Presently, Cambodia is known for its state of impunity and lawlessness.7 For instance, in the February 2002local elections, Human Rights Watch reported that political violence had increased; documenting eighty-two cases of political threats and violence that were directed at the opposition party. In June, four commune candidates had been shot dead and two 56

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others wounded. 8 By way of a strong judicial system, it would serve as a deterrent to others to not engage in such conduct in the future. Having a culture which respected the rule oflaw would make individuals responsible for the choices they make. Cambodia, the country known for its "Killing Fields"9now needs major democratic reforms in order to prevent another crisis from happening again. The people of Cambodia have lived through three decades of civil war without any justice given to them. After years of unrest, the Cambodian people finally have a chance to undo all the political injustice done to them during the Khmer Rouge rule. They now have the opportunity to face their aggressor and demand justice for the lost people of the 1970s. To preserve the newfound peace, Cambodians must confront the old crimes ofthe past as well as the present. But for Cambodia to have a brighter future, Cambodians must build upon themselves. Through a combination of a South African Truth and Reconciliation Commission, and a Nuremberg trial, the Cambodian people and the government can work together to build a new society in which the rule of law is respected. For the last thirty years, Cambodia has been in one kind of conflict or another. After years of hardship, it now has the opportunity to overcome its past. Will Cambodia conduct a Khmer Rouge Tribunal, or will it choose to have a truth and reconciliation commission, or neither. Only time will tell. 57

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1 The government's lack of experience in administering economic and technical assistance programs, as well as rampant corruption among officials have caused growth of critical public sector investment to slow down. 2 Cambodia has the highest HIV I AIDS in South East Asia. 3 Andrew Lam, "Pol Pot's Curse Lives On-A Rural Rage against the City," [Online] Available. http://www.pacificnews.org/jinn/stories/4.08/980421-carnbodia.html. 4 Human Rights Watch 2002: Asia: Cambodia. [Online] Available. http://hrw.org/wr2k2/asia3.html. 5 "Cambodia seeks truth in Khmer Rouge Trial," World News Asia Pacific, January 6, 2001 6 http://\vww.cybercambodia.com/dachs/stories/ronnie.html 7 ibid. 8 ibid. 9 The Movie "The Killing Fields" depicted Cambodia during the rule of the Khmer Rouge during 197 5-79, thus the name stuck for that particular period 58

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BffiLIOGRAPHY Ahlin, A. David. 1987. The Cambodian Agony, (Annonk: M.E. Sharpe), pp. 6-25. Agence France-Presse. 2001. "Khmer Rouge leaders ready to face trials, says spokesman," Global Nation, August 14. Agence France-Presse. 2002. "I don't trust you, Cambodia's Hun Sen warns the UN," Global Nation, March 6. Amnesty International Annual Report, 2002. [Online] Available. http://web.amnesty.org.htm. August 8, 2002. Benton, E Wilbourne. 1955. "Introduction," in Wilbourne E. Benton and Georg Grimm, eds., Nuremberg: German Views of the War Trials, (Dallas: Southern Methodist University Press), p.13. --Cambodia afraid ofKhmer Rouge trial. [Online] Available http://thestar.eom.my/news/story, August 29, 2002. --Cambodia: Hun Sen says a Khmer Rouge trial must be balanced with reconciliation [Online] Available. http://www.ahrechk.net/news/mianfile.php/ahmews, September 9, 1998. Chandler, David. 2000. A History of Cambodia, (Boulder: Westview Press). Chandler David, 1998. Facing the Cambodian Past: Selected Essays, 1971-1994, (Chiang Mai: Silkworm Books). Chub, Karin & Lutz Van Dijk. 2001. Between Anger: South Africa's Youth and the Truth and Reconciliation Commission, (New Brunswick: Witwatersrand University Press), p. 7. Coday, Dennis. 2000. "UN, others push for Cambodia war crimes tribWial," National Catholic Reporter, June, p. 16. Deac, Wilfred .. 1997. Road to the Killing Fields: The Cambodian War of 19701975, (College Station: Texas A&M University Press), pp. 1-120. 59

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Donnelly, Jack. 1999. "The Social Construction oflnternational Human Rights," in Tim Dunne and Nicolas J. Wheeler, eds., Human Rights in Global Politics, (Cambridge: Cambridge University Press), pp. 71-102. Duke, Lynne. 1995. "For de Klerk's Party, Apartheid is Part of a Past Best Forgotten," Washington Post, October. Elshtain, Jean Bethke. 1997. "True confessions," The New Republic, November. Etcheson, Craig. Human Rights in Cambodia: Intro to Human Rights in Cambodia. [Online] Available. http://www.derechos.org/human rights/seasia/doc/camintro.html, December 18, 2000. Feher, Michel. 1999. ''Terms ofReconciliation," in Carla Hesse and Robert Post, eds., Human Rights in Political Transitions: Gettysburg to Bosnia (New York: MIT Press), p. 325. Frankin, J. Daniel. The International Military Tribunal: An Overview and Assessment. [Online] Available http://www.iocc.com/-joshua/history/trials/trials.html., September 14, 2002. Gevisser, Mark. 1995. "Hippie who became staunch," Mail and Guardian, February. Gibson, L. James. 1999. "Truth and reconciliation in South Africa: attributions of blame and the struggle over apartheid," American Political Science Review September. Godkin, January. Origin of the International Military Tribunal at Nuremberg. [Online] Available http://www .nuclearfiles.org/ehtics/nuremberg/Ther Nuremberg Trials. html. October 9, 2002. Graybill, S. Lyn. 2002. Truth and Reconciliation in South Africa: Miracle or Model,? (Boulder: Lynne Rienne Publishers). Hesse, Carla and Robert Post. 1999. "Introduction," in Carla Hesse and Robert Post eds. Human Rights in Political Transitions: Gettysburg to Bosnia, (New York: MIT Press), pp. 13-36. Hun Sen sees door opening on Khmer Rouge trial. [Online] Available. http://www.inq7.net/wnw 5-l.htm, January 12,2001. 60

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--Rainsy says Government Afraid of Khmer Rouge Trail. AFP, (August, 1999). Human Rights Watch World Report 2002: Asia: Cambodia. [Online] Available http://hrw.org/wr2k2/asia3.html, June 4, 2002. Human Rights Watch, 2000: Asia: Cambodia. [Online] Available http://hrw.org/wr2k2/asia3.html, March 5, 2000. Hyde, H. Montgomery. 1964. Norman Birkett: The Life of Lord Birkett of Ulverston, (London: Hamish Hamiltqn), p. 504. Jackson, H. Robert. 1947. The Nuremberg Case 7-8. (New York: Ballantine Books). Jung Kim Dae. 2001. "Is Culture Destiny? The Myth of Asia's Anti Democratic Values a Response to Lee Kuan Yew," in Martha Meijer, ed., Dealing with Human Rights : Asian and Western Views on the Value of Human Rights,.( Amsterdam :Gerber Publishing). Kahn, Leo. 1972. Nuremberg Trails (New York: Ballantine Books), pp.7-159. Klefisch, RA. TH. 1955. Thoughts about Purport and the Effect of the Nuremberg Judgment, in Wilbourn E. Benton and Georg Grimm, eds., Nuremberg: German Views of the War Trails (New York: Southern Methodist University Press), p. 201-211. Lam, Andrew. Pol Pot's Curse Lives On-A Rural Rage against the City. [Online] Available http://www.pacificnews.org/jinn/stories/4.08/980421can1bodia.html. March 8, 2000. Maluleke, Tinyiko Sam. 2001. "Can lions and rabbits reconcile? (management of past violence)", Eucumenical Review, April. Marrus, R. Michael. 1997. The Nuremberg War Crimes Tria/1945-46: A Documentary History, (Boston MA: Bedford Books). McDonald, Mark. 1999. "Cambodians welcome prospect ofKhmer Rouge tribunal," Knight-Ridder Tribune, March. 61

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