Examining Models of Justice in Post-Genocidal Cambodia

Savannah Wiseman
University of Southern California


I went to Cambodia to research the question of justice in post-genocidal Cambodia . I looked at various models of transitional justice and how they could be applied to the current situation there. Specifically, I spoke with former members of the Khmer Rouge regime and with victims of the regime, and attended the ongoing trials of senior Khmer Rouge leaders at the Extraordinary Chambers in the Courts of Cambodia (ECCC) in the outskirts of Phnom Penh . After listening to the stories from both the victims and the perpetrators of the horrors of the regime, I questioned whether any amount of legal prosecution, punishment, forgiveness, and truth-telling can ever compensate for the torture, the starvation, the fear, and the killings that defined this period in Cambodian history.

Justice, as a concept, implies fairness, and therefore seems like an impossible goal after a genocide. Indeed, you can think of the most severe punishment in the world and it doesn't seem fair in light of the crimes committed. But while justice seems unattainable, attempts to impose some degree of justice should be undertaken with the hope of moving towards reconciliation and peace in Cambodia . To that end, I propose that the most effective way of promoting reconciliation and achieving a lasting peace is by implementing retributive and restorative models of justice. By doing so, the ECCC can impose a punishment on the perpetrators who were most responsible for the genocide, that will act as a deterrent against future violations of human rights, but also can acknowledge and then forgive the crimes of those who were acting out fear for their lives, keeping families intact, promoting peace in the community, and thus contributing to the process of social healing.

The retributive model of justice is widely supported as an effective and necessary way of addressing crimes and administering “justice.” The retributive model focuses on holding wrongdoers accountable for their criminal acts. To that end, the ECCC has been designed to hold top leaders of the Khmer Rouge accountable for crimes against humanity, war crimes, and grave breaches of the Geneva Convention, and to punish those convicted with a maximum sentence of life in prison and a minimum sentence of five years. And although it is not clear what the result will be, many Cambodians and members of the international community are hopeful that, by focusing on retribution, the ECCC may be able to help the victims heal by punishing those responsible, and send a powerful message of condemning heinous crimes such as extermination and torture, and hopefully deter future perpetrators from committing similar crimes. In these ways, the retributive model of justice may make very meaningful contributions toward a future of peace and reconciliation in Cambodia .

The restorative model of justice can supplement a retributive model to ensure that proper attention is paid to the victims’ needs specifically. The restorative model generally includes the recognition of and the forgiveness of crimes, which can facilitate reconciliation at the local level. The Khmer Rouge systematically destroyed the traditional bonds of family, friendship, and community, replacing these bonds with absolute obedience and loyalty to the “ Angkor ”. Testimonies from survivors reveal that failure to obey the orders of the Khmer Rouge resulted in torture, starvation, and death of the offender. For these reasons, legally prosecuting and punishing those who complied with the Khmer Rouge out of fear may actually hurt the reconciliation process by further disrupting family and community life. Locking up all “perpetrators” will break up families, leaving wives without husbands, children without parents, etc. Because the retributive model is counterproductive on an individual and communal level, the restorative model is paramount to achieving reconciliation for individuals, families and communities.

In some ways, the Cambodian government has chosen to implement restorative justice ideals by electing to forgive mid and lower level perpetrators in the sense that the court is not seeking legal prosecution and punishment of them. In a published statement, Prime Minister Hun Sen acknowledged the Khmer Rouge’s guilt in the loss of three million Cambodian lives between 1975-1979.” He also declared that the “crimes of the Khmer Rouge period were committed not just against the people of Cambodia but against all humanity” and promised to “build a culture that will prevent the recurrence of such crimes anywhere”. Prime Minister Hun Sen’s recognition and condemnation of the Khmer Rouge regime is critical in validating the grievances, sufferings, and losses of the victims and their families, and, in reassuring the Cambodian people, “Never again.” Many members of the Cambodian government, including Prime Minister Hun Sen himself, were at some point Khmer Rouge members (either by choice or through intimidation). It is therefore important that they disavow their previous loyalty to the Khmer Rogue regime and condemn its actions as not only criminal, but immoral, through statements such as the one made by Prime Minister Hun Sen.

The second part of the restorative model implemented by the Cambodian government is the forgiveness of mid and lower level perpetrators. An ECCC publication states: “The Cambodian government and the U.N. decided that the court should limit prosecutions to the senior leaders of [the Khmer Rouge]…that are most responsible for committing serious crimes”. By forgiving mid and lower perpetrators and focusing on the prosecution of senior leadership, the Cambodian government and the U.N. avoid the difficult task of discerning who is a victim and who is a perpetrator, as many “perpetrators” were victims themselves. I witnessed this gray area between victim and perpetrator first hand in my interview with former S-21 Prison Guard, Kiev Peou. Peou explained that he was taken by the Khmer Rouge when he was 12 years old and was trained as a child soldier before being sent to work at S-21 Prison at age 15. As another victim said, “Cambodian children [were] trained to carry out Khmer Rouge orders, no matter how brutal and cruel”. Several of the interviewees I spoke with felt that legal prosecution and punishment of “perpetrators” living in their community was unnecessary for this reason. One interviewee, a neighbor of Him Huey (a well-known S-21 leader) said he did not believe Huey should be punished because he was following orders out of fear for his life.

By not pointing fingers at every individual who may have committed a crime, the forgiveness model has the potential of restoring a peaceful, community-based life to Cambodia . It is thought by some that national forgiveness can reduce community-wide stress and panic caused by fear of legal prosecution and punishment, prevent further hostilities resulting from factual disagreements in individual cases, cultivate empathy and compassion for the perpetrators, many of whom share the same grievances, sufferings, and losses of the victims, and encourage a more forward-looking approach to understanding the Khmer Rouge era.

Some critics, however, argue that national forgiveness would encourage a culture of impunity. However, the likelihood that forgiveness will result in individual and communal reconciliation seems to outweigh the possibility that it could facilitate a sense of impunity. Furthermore, by holding accountable only those most responsible (the senior leadership of the Khmer Rouge) through legal prosecution, the ECCC may achieve an optimal balance between encouraging reconciliation while still deterring impunity.

The international community and a significant portion of the Cambodian community vigorously support the work of the ECCC in seeking the truth and in prescribing punishment for the senior leaders. Several recent surveys show that between 75 and 85 percent of Cambodian respondents were in favor of ECCC trials of senior Khmer Rouge leaders. Surprisingly, however, many of the Cambodians I spoke with were adamantly opposed to prosecuting perpetrators at mid and lower levels who might now be their neighbors. This seems to indicate that the general population is receptive to the idea of forgiveness alongside retribution.

Policy Prescriptions: Retributive and Restorative Models of Justice

The U.N. and the Cambodian government can take steps to improve the use of both the retributive and restorative models of justice. Well-designed social programs can improve and enhance each model’s ability to achieve reconciliation for Cambodians. The Documentation Center of Cambodia (DC-Cam) has been instrumental in developing a variety of social programs, which have aided in the reconciliation process. Some of DC-Cam’s social programs involve efforts to preserve and to translate Khmer Rouge documents, distribute textbooks of the history of the Khmer Rouge to Cambodian schools, document the testimonies of survivors, provide parties to the ECCC with evidence of the atrocities committed by the Khmer Rouge, and build a permanent research center, library, museum, and memorial site dedicated to the victims of the Khmer Rouge. However, Cambodia needs more than the efforts of DC-Cam to successfully achieve reconciliation. The international community and the Cambodian government should coordinate with DC-Cam (and other organizations) in developing, funding, implementing, and expanding different kinds of social programs.

Social programs that enhance the retributive model of justice should be designed to increase direct victim participation in the trial process by providing transportation for Cambodians to attend the trials and by helping victims register as civil parties, and increase indirect victim participation in the trial process by educating citizens about the rule of law and by making information available and accessible to all Cambodians, especially those in the remote areas. Such efforts may be best accomplished through pamphlets, radio broadcasts, community leaders, television, and in the schools. Additional programs should be established to publicize apologies given by former Khmer Rouge, through widespread press, and provide a fund for victim reparations, which can be used to pay for social welfare programs for victims.

To supplement programs animated by retributive models of justice, social programs focused on restorative models of justice should also be encouraged. Such programs should aim at publicizing the government’s acknowledgement of the crimes committed down to the local level, formally educate the Cambodian population about the Khmer Rouge period, and develop healing programs based on Buddhist teaching that encourage forgiveness.

No single model of justice is sufficient to reconcile the entire Cambodian population. 70 percent of Cambodians are under the age of 25 and have no memory of the Khmer Rouge period. The younger generation therefore needs to be reconciled in ways that are different from those of the older generation, which suffered first hand. It is important that the reconciliation process be multi-faceted, and should include opportunities to not only remember the past, but to positively impact the future. Establishing rule of law in Cambodia through the ECCC, and ensuring that this will never happen again, through education and social programs, may not be “justice” for genocide, but perhaps could be reconciliation for the tortured past and hope for a peaceful future.