Documenting the Truth by Khavan Sok Economics and Foreign Affairs University of Virginia Class of 2002      * with special thanks to Sody Lay for his guidance and assistance The United Nations and the Cambodian Government have been involved in intense negotiations over the process of bringing former Khmer Rouge leaders to justice for several years now.  Almost three decades after they committed their crimes, putting the Khmer Rouge on trial is still exceedingly difficult and political.  It is difficult because of Cambodia’s weak judicial system and lack of proper evidence.  It is political because many current government officials were in some way or another involved as part of the Khmer Rouge regime and former Khmer Rouge leaders still possess critical influence regarding the balance of power between leading and opposition parties. Bringing the Khmer Rouge to justice is a delicate matter.  Despite much enthusiasm for having a tribunal, the United Nations and the Cambodian Government have made it clear that only those most responsible for genocide and crimes against humanity will face prosecution.  At least three former Khmer Rouge leaders have already died, and several more are facing old age and life-threatening illnesses.  Another leader, Ieng Sary, is protected by the King’s pardon after he defected to the Government in 1996.  Furthermore, the Government currently has only two former Khmer Rouge leaders in custody.  If a tribunal is in fact established, perhaps only a handful of former Khmer Rouge members will be prosecuted. On March 17, 2003, the Cambodian Government Task Force and the United Nations negotiation team led by Hans Corell reached an agreement regarding the nature of a tribunal and the relationship between the Cambodian Government and the United Nations in regard to the tribunal.  Although many observers expressed enthusiasm, a number of international human rights groups, especially Amnesty International, have uttered concerns and protests against the agreement citing it fails to meet international standards of justice.  In addition to seeking justice, however, any process dealing with the Khmer Rouge must also address and achieve educational, remedial and political goals.  Prosecuting top Khmer Rouge leaders alone may not do enough to achieving these goals.  This article attempts to discuss some possible burdens and benefits of establishing a truth commission in Cambodia to be utilized in conjunction with trials. Purpose of a Truth Commission There have been many different forms of truth commissions set up over the years.  All of them have one major goal in common: to address and document the truth concerning pass human right abuses.  The primary objective of a truth commission is not to reach a verdict for a particular crime, but to elicit the truth about what occurred during a certain period of time in a country's history.  In a truth commission, victims as well as perpetrators of atrocities are given an opportunity to tell their sides of the story, thereby enabling observers to grasp a bigger and better understanding of events that transpired.  To encourage perpetrators to speak the truth, however, they are often granted some kind of amnesty.  Therefore, unlike trials, punishment is not necessary even if specific individuals are found to have been responsible for certain crimes. Over the past 25 years, over 30 truth commissions have been utilized around the world.  They have generally been used in situations where a nation was attempting to shift from a totalitarian to a democratic form of government.  Since these new democracies were often fragile, leaders of a new regime usually did not want to risk confrontation with leaders of a prior regime over the issue of past human rights abuses.  Trials would have risked destabilizing the country.  Nevertheless, these new governments also wanted to encourage respect for human rights and respect for the rule of law.  They wanted to send the message to elements in the government such as the police and military that human rights abuses would no longer be tolerated.  To ignore such a problem would have been tantamount to giving violators of human rights the license to continue their practice. Consequently, rather than placing leaders of an old regime on trial for the human rights violations they may have committed, the new government instead sought simply to discover the truth about what really occurred in the past and publicly rebuke abusive practices.  Through a truth commission, the new government could acknowledge that past human rights violations were wrong and affirmatively declare abuses would no longer be tolerated in the future. The Case of Cambodia Unlike other nations that have employed truth commissions, the current Cambodian Government has politically as well as militarily defeated its opponent, the Khmer Rouge.  In most nations, the old regimes were not militarily defeated, but rather, in an attempt to transition into democracy, fighting factions in those countries agreed to reconcile peacefully for mutual interests.  In many cases, leaders of the old regimes still had influence in powerful government institutions.  In Cambodia, leaders of the Khmer Rouge have been driven from power and most are confined to their small stronghold in the northwestern corner of the country.  The new regime led by Prime Minister Hun Sen controls virtually all of the country, commands vastly superior military power, and is in charge of almost all government institutions. The Cambodian Government has achieved victory over the Khmer Rouge using both military and diplomatic channels.  In the early 1990’s, as Cambodia moved toward democracy, Prime Minister Hun Sen launched a campaign called the ‘win-win’ policy.  In an effort to seek peace, the Government courted the Khmer Rouge for their political and military importance rather than simply threatening further military action against them.  The ‘win-win’ policy offered Khmer Rouge defectors amnesty, integration into society, and government jobs.  The policy achieved huge successes as wave after wave of Khmer Rouge leaders and soldiers surrendered to the Government.  The Khmer Rouge finally ceased to exist as a threat when its leader, Pol Pot, died in 1998, and the last at large Khmer Rouge commander, Chhit Choeun, alias ‘Ta Mok’, was captured a year later. Would a Cambodian Truth Commission be Viable?  a.  Public Participation Public participation will be an important factor in whether or not a truth commission will work in Cambodia.  The South African Truth Commission was successful because it encouraged perpetrators of human rights abuse to come forward by offering them the opportunity to receive amnesty for their testimonies.  In the alternative, if they did not come forth and avail themselves of the opportunity for amnesty, they would risk later being caught and prosecuted for their crimes.  A truth commission in Cambodia, however, will not be able to encourage perpetrators to testify in this way.  Many Khmer Rogue cadres defected to the Government with an understanding that they would not be prosecuted.  The Government encouraged and welcomed defections and its ‘win-win’ policy guaranteed them peaceful resettlement without retribution.  In addition, many influential government officials are themselves Khmer Rouge defectors.  Large-scale threat of prosecution would therefore be extremely controversial and possibly destabilizing.  Hence, such action may not be desirable. Prosecutions aside, many Cambodians want some form of public acknowledgement by the Khmer Rouge for the crimes they committed.  In 2000, the Center for Social Development held public forums in three major cities across Cambodia: Battambang, Phnom Penh, and Sihanoukville.  Their surveys revealed that 32% of those who participated in Battambang, 38% of those in Phnom Penh, and 37% of those in Sihanoukville felt that former Khmer Rouge leaders should publicly admit their faults and apologize.  The Center for Social Development survey did not reveal, however, whether the Cambodian public would themselves be willing to participate in a truth commission.  Most Cambodians are burdened by the day-to-day struggle for survival.  Many are hindered by illiteracy and lack of proper education.  Hence, how best to encourage participation by victims will be an issue that must be addressed by proponents of a Cambodian truth commission.  An even more difficult issue will be how best to encourage former Khmer Rouge cadres to come forward and testify.  Even among Khmer Rouge cadres who are willing to come before the commission, fear or embarrassment that their testimonies will be incriminating may incline them to lie despite the non-adversarial nature of the proceedings. b.  Peace and Stability Examining the Cambodian situation reveals some very real concerns about the feasibility of a truth commission.  Digging up the past and exposing influential people for their involvement in murders and other crimes against humanity can be dangerous.  Within the general population, it may stir up feelings of vengeance and rage.  Furthermore, many former Khmer Rouge cadres are now integrated into military and police forces.  Will a Cambodian truth commission cause instability? Peace and stability are extremely important to Cambodia and the Cambodian people because it is so fragile.  After all, the country has only achieved real peace since 1999.  The anti-Thai demonstration in January 2003 shows just how volatile the country can be.  The Khmer Rouge still possess critical political and military balance as the leading and opposition political parties continue to jockey for power.  In fact, this political maneuvering for Khmer Rouge support might have played a role in the July 1997 military shakedown, when massive Khmer Rouge defections occurred. A Cambodian truth commission will also require long-term financial and political support from the public, the government, and donors.  A truly viable truth commission would require answering numerous questions:  Who would be the donors?  Does the Cambodian Government have political will and commitment?  Does Cambodia have adequate human resources to carry out the work of the commission?  Would there be means to address emotional and psychological fallout?  Will everybody accept the findings of the commission?  Given the current political climate in Cambodia, different political parties may have various incentives to disagree over the commission’s ultimate findings.  c.  A Workable Cambodian Truth Commission A Cambodian truth commission need not be an expensive venture or one that requires extensive public and governmental commitment.  Since a truth commission in Cambodia would, in all practical terms, be used to simply augment trials rather than in lieu of them, a judicial mechanism for seeking justice will already be in place.  As a supplementary mechanism to trials, the work of the commission can be reduced to a fraction of the size of other truth commissions.  For instance, the commission need not have prosecutory or investigative powers.  Without such authority, the bureaucratic structure of the commission and the need for government involvement will be drastically reduced. Streamlining the process and making the work of the commission much more specific and cost-effective would leave important resources to help rehabilitate Khmer Rouge victims and perpetrators.  Organizations such as the Center for Social Development and the Documentation Center of Cambodia have already been working in Cambodia for years promoting the very educational and remedial goals a truth commission would be designed to foster.  These organizations can be recruited to contribute their expertise and experience and would be a valuable resource throughout and after the truth commission process. Overall Benefits of a Cambodian Truth Commission While many  issues continue to weigh against the prospect of a Cambodian truth commission, there are also key benefits Cambodians stand to gain from having a truth commission that complements trials: first, the commission would serve to educate the public about various details of the Khmer Rouge era, much of which may not be elicited in the adversarial proceedings of trials; secondly, the commission would serve to publicly acknowledge victims of the Khmer Rouge’s crimes on a more individual and personal level than trials. Since many people still do not quite understand what happened in Cambodia during the Democratic Kampuchea period, a truth commission's function of uncovering and documenting the truth about what occurred would make it a particularly desirable mechanism for Cambodia.  Cambodian truth commission proceedings will also have the ability to determine the causes as well as the effects of the Khmer Rouge period.  It is important to determine not just what the Khmer Rouge did, but it is also important to understand why they did what they did.  The answer to the question ‘why’ is especially important for the psychological and emotional healing of victims.  Understanding why they were made to suffer may help victims to better cope with the fact that they suffered and the fact that members of their family suffered.  Only when we understand what created the Khmer Rouge and why they were so brutal can we take measures to ensure that such a tragedy will never happen again in Cambodia. Public acknowledgement of crimes by both victims and perpetrators is also a key benefit of truth commissions. At truth commission proceedings, Khmer Rouge victims would be given an opportunity to tell their stories and express their anguish and sorrow.  By listening to them, the commission can publicly acknowledge their suffering and the wrongs that have been inflicted upon them.  This acknowledgement in itself can provide victims with a sense of comfort and closure.  The absence of public acknowledgement, on the other hand, can cause victims to remain indignant and resentful of the injustices perpetrated against them.  These negative feelings may manifest themselves in informal retribution at both an individual and collective level, possibly causing within society a general increase in violence and decrease in respect for the rule of  law. For almost three decades the Cambodian people have lived knowing that their tormentors remain free.  Since many Khmer Rouge soldiers defected in 1996 and integrated into Cambodian society, many Cambodian victims have had to live side by side with their tormentors.  Although some may want retribution, it is also clear that they have shown tremendous tolerance.  Many victims have, in fact, expressed a desire to forgive their tormentors and move on with their lives.  Clearly, a Cambodian truth commission will face social and political controversy and difficulties in obtaining and documenting the truth.  Clearly, not all victims and perpetrators will have an incentive or desire to testify.  Nevertheless, it is also clear that any process dealing with the Khmer Rouge must seek to heal and educate Cambodian society, goals that tribunals alone may not be adequate in achieving.