ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, March 3, 1996 TAG: 9603010091
SECTION: HORIZON PAGE: F-1 EDITION: METRO
DATELINE: UNITED NATIONS
SOURCE: BARBARA CROSSETTE THE NEW YORK TIMES
After the Nazis, there were the Nuremberg trials. More recently, ethnic cleansing in Bosnia-Herzegovina and genocide in Rwanda have led to the establishment of international criminal tribunals.
But out there in the middle distance lurks a monstrous catalog of atrocities against a nation and its people that no judicial process has yet dared to touch: the Khmer Rouge era in Cambodia.
A new report for the State Department by two American legal scholars, who try to clear the air of legal and procedural questions so that justice can be done, raises some tough questions that help explain why the world has shied away so long from this great Asian tragedy. The report, completed in December, went to Congress on Feb 8.
Was it genocide? The two legal experts - Steven R. Ratner, an assistant professor at the University of Texas School of Law, and Jason S. Abrams, a consultant in international law - say that most of it was not.
Then what was it? A ``vast majority of offenses'' were crimes against humanity, the authors say. Does that matter? No again. Genocide, as defined in the 1948 Genocide Convention, includes ethnic and racial minorities and groups identified by their religious beliefs; it excludes political or economic classes, at the insistence of Stalin's Soviet Union. But genocide is only one among an internationally recognized body of crimes against humanity.
Punishing the guilty in Cambodia would establish a precedent for other countries and conflicts, where legalistic disputes over what constitutes genocide delay accounting for horrific crimes.
``What makes Cambodia different from Bosnia or from what the Nazis did is that the bulk of the victims were victims based on their politics rather than on their ethnicity,'' Ratner said in an interview, explaining why the report found the Khmer Rouge culpable of genocide only in its attempts to eliminate ethnic Chinese, Vietnamese and Cham citizens and Buddhist monks, all categories recognized by the Convention.
The others were more like the case of the Soviet massacres of the farmers known as Kulaks ``because it does concern the systematic slaughter of people opposed to the regime.''
``The word genocide has a cachet, and people want to use it,'' Ratner said. ``But we try to point out that other crimes are equally egregious.''
For less than four years - from April 17, 1975, until Jan. 7, 1979, dates seared into every Cambodian soul - the Khmer Rouge, more radical than China's Maoists, waged a manic campaign to return Cambodian history to the Year Zero and start over as an ethnically pure Khmer nation purged not only of its minorities but also of its professional middle class. (The French-educated elite of the movement made exceptions for themselves.)
When it was over, the killing fields were littered with the bones of those who had perished in executions, forced marches, slave labor, or living conditions that left millions sick or malnourished. It was estimated that up to a million Cambodians, in a population of about 7.5 million, died.
A researcher in Yale University's Cambodia Genocide Program, also established with State Department funds, now says the number may be closer to 2 million. Craig Etchison, deputy director of the Yale project, said thousands of previously unknown mass graves are being located.
The number of deaths under Khmer Rouge rule has always been in dispute, but the extent of the horror - once it became known to the world - was never in question. Still, no international tribunal was established for Cambodia, and no subsequent Cambodian government has tried to investigate or bring to trial leaders of the Khmer Rouge, most of whom are still fighting from guerrilla bases on the Thai border.
Cambodia has produced nothing like Argentina's 1986 ``Nunca Mas'' report on the military's ``dirty war'' against dissidents. And unlike the 1992 peace agreement for El Salvador, which established a Truth Commission to investigate atrocities, the 1991 Paris accord on Cambodia had no provision for human rights accountability.
There were too many political and diplomatic interests involved. China was the most powerful backer of Khmer Rouge leader Pol Pot and the United States had reluctantly and under considerable fire supported him as part of a coalition opposing the government installed in Phnom Penh by the Vietnamese army in 1979.
That government, led by Hun Sen, was in effect a breakaway branch of the Khmer Rouge. Both sides were tainted. Hun Sen is again prime minister, one of two in an unusual power-sharing arrangement with the royalist party of King Norodom Sihanouk, who on the carousel of Cambodian history was once in alliance with the Khmer Rouge and still shares their friends in China.
Who or what can penetrate this circle of complicity? The new report, ``Striving for Justice: Accountability and the Crimes of the Khmer Rouge,'' surveys the possibilities. There is the International Court of Justice in The Hague, which the authors advise against: ``The political and psychological distance between an opinion from the U.N.'s judicial body and the lives of Cambodians suggests it will have little impact on victims, offenders or the rest of the Cambodian nation.''
International criminal tribunals may also have to be rejected, the report says, because the system is already overstretched and underfinanced in the former Yugoslavia and Rwanda. A permanent international war crimes tribunal is still a dream. Cambodian courts? There is wide agreement that they are still effectively nonfunctional.
The report recommends a mixed commission of Cambodians and international experts with a two-to-three-year mandate set up perhaps by the United Nations. That gives the world collective leverage to begin prying open the period to lay the groundwork for future prosecutions.
But the United Nations is only a sum of its parts, and it would require pressure from powerful nations, above all the United States, to set a process in motion. Cambodia now has a documentation center to collect evidence on the Khmer Rouge years and train Cambodians to gather and analyze that information. It has a United Nations center for human rights in Phnom Penh.
``The United States has failed to seize the initiative on this issue for too many years,'' the report says.
Whom to prosecute? ``The era of Democratic Kampuchea involved a whirlwind of atrocities, committed by many thousands of people across an entire country trapped in a revolution often beyond control,'' the report says, concluding that a full accounting is ill advised and unrealistic.
Limit the search to the policymakers and chief henchmen, the authors say. But get started before it is too late.
When Congress passed the 1994 law that authorized the State Department research projects, it ``clearly had in mind the prosecution of Khmer Rouge offenders,'' Abrams said in an interview. ``A failure to address these crimes will leave open wounds that may hinder the future development of Cambodia.''
LENGTH: Long : 123 lines ILLUSTRATION: PHOTO: File, 1979. Four-year harvest: 8,985 remains wereby CNBuncovered at this Khmer Rouge killing field site in Kampuchea. The
iron shackles (middle of photo) were used to bind the victims