Twenty-four years ago, the Khmer Rouge army entered Phnom Penh, the capital of Cambodia. Thus began a genocidal regime which killed 1.7 million of 8 million Cambodians, before it was overthrown by Hanoi's troops in 1979. For the next twenty years, Pol Pot, one of the worst mass murders of the twentieth century, evaded justice. Last year he died in his sleep.

China, the United States, and the Association of Southeast Asian Nations (ASEAN), all supported Pol Pot's Khmer Rouge in various ways. The Great Powers opposed attempts to bring the Khmer Rouge to justice. No country in the world could be found to file a case against them in the World Court. The Khmer Rouge held on to the Cambodian seat in the United Nations, representing their victims for another fifteen years even though they were openly accountable for their crimes. Rather, international aid poured into their coffers, abetting their war to retake power.

Governments were not alone at fault. In the 1980s, respectable non-government international legal bodies rejected numerous invitations to send delegations of jurists to Cambodia to investigate the crimes of the Khmer Rouge and possibly initiate official legal action. The American Bar Association, LawAsia, and the International Commission of Jurists all refused.

Only the Australian branch of the International Commission of Jurists showed interest, in the late 1980s. Powerful U.S. media outlets also campaigned to derail the attempt to document Khmer Rouge crimes.

But, at Cambodia's request in 1997, the U.N. set up a Group of Experts to investigate, headed by former Australian Governor-General Sir Ninian Stephen. Its report recommends an international tribunal to try Khmer Rouge leaders for genocide, other crimes against humanity, and war crimes. Negotiations are now underway with the Cambodian government, which has recently captured or accepted the surrender of the surviving Khmer Rouge leadership.

Why did it take so long? From 1979 to 1994, there was tremendous international opposition to any legal action against the Khmer Rouge. Only since 1994 has there been an important shift.

1979-1994

When the Vietnamese army ousted the Khmer Rouge in 1979, most of the world lined up in confrontationalist Cold War positions. By intervening, Hanoi was seen as having created 'the Cambodian problem' rather than having ended the genocide. With the support of Australia as well as the United States and China, the Khmer Rouge held on to Cambodia's U.N. seat. The only major Western country that abstained, but did not vote against the Khmer Rouge on the issue, was France.

From 1979 to 1982 the Khmer Rouge continued to hold Cambodia's seat alone, using the name 'Democratic Kampuchea.' Then two smaller non-communist parties joined them in a 'Coalition Government of Democratic Kampuchea' -- in fact neither a real coalition, nor a government, nor democratic, nor in Cambodia! Thus the Khmer Rouge flag flew over New York until 1992.

Several actors contributed to the impunity the Khmer Rouge enjoyed after 1979:

Thailand

Neighboring Thailand has provided key support to the Khmer Rouge -- beyond physical sanctuary along the border, or secret diplomatic aid. In 1985, Thailand's Foreign Minister described Pol Pot's deputy, Son Sen, as a "very good man." In 1991, General Suchinda Krapayoon, who had seized power in Thailand through a coup, told a U.S. senator that he even considered Pol Pot a "nice guy."

Thai politician Anand Panyarachun told Pol Pot's front man, Khieu Samphan: "Sixteen years ago I was also accused of being a communist. Now they have picked me as prime minister. In any society there are always hard liners and soft liners, and society changes its attitudes toward them as time passes by."

After meeting Pol Pot in 1991, Suchinda pleaded to the media that Pol Pot had no intention of regaining power any more and it was time to treat him 'fairly.'

The Media

In the early 1990s some of the Thai-based media were encouraged by official Western agencies to speculate that the Khmer Rouge leopards had changed their spots. First, they had become ecologists. One reporter recorded in 1991: "Western intelligence sources along the Thai-Cambodian border say that Pol Pot recently issued a directive calling on Cambodians not to poach birds or animals and to refrain from killing them for any reason." Pol Pot's military commander, 'Ta' Mok, was reportedly described by the same Western intelligence sources as being "hot on ecology issues and protection of endangered species."

Describing his battlefield commanders in 1987, Pol Pot noted that, "Mok is the best among them. Despite his brutality, the good outweighs the bad." Junior commanders described Mok as "cruel but reasonable"; Mok is quoted as saying, "I know that people inside Cambodia fear me." Such statements were apparently not reported in the press.

An analyst at a Western embassy in Bangkok even described the Khmer Rouge as "much more respectful of civilians than the other three factions." Reporting on the Paris Agreement of 1991, the Far Eastern Economic Review reported that "diplomats say that the Khmer Rouge would not have signed an agreement that it did not intend to follow." Khmer Rouge troops quickly attacked 25 villages in Kompong Thom province, driving 10,000 people from their homes. While some diplomats called this the "worst violation of the cease-fire so far," officials of unnamed governments argued that "the Khmer Rouge apparently mounted the attacks to hasten deployment of U.N. peacekeepers to the area."

Chinese and U.S. policies

"I do not understand why some people want to remove Pol Pot," said China's Deng Xiaoping in 1984. "It is true that he made some mistakes in the past but now he is leading the fight against the Vietnamese aggressors." China provided the Khmer Rouge forces with $100 million in weapons per annum all through the 1980s, according to U.S. intelligence. A large Chinese arms shipment in mid-1990 violated a previous promise to cut weapons deliveries to the Khmer Rouge in return for Vietnam's September 1989 withdrawal from Cambodia.

For more than a decade, official Western support for Deng Xiaoping's China spilled over into support for his protégé Pol Pot. Former U.S. National Security Advisor Zbigniew Brzezinski recalls that in 1979, "I encouraged the Chinese to support Pol Pot. Pol Pot was an abomination. We could never support him, but China could." According to Brzezinski, the United States "winked, semi-publicly" at Chinese and Thai aid to the Khmer Rouge. At the same time, international aid to the Khmer Rouge on the Thai border was pushed through by United States officials.

In the 1980s, U.S. Secretary of State George Shultz opposed efforts to investigate or indict the Khmer Rouge for genocide or other crimes against humanity. Shultz described as "stupid," Australian Foreign Minister Bill Hayden's 1983 efforts to encourage dialogue over Cambodia, and in 1986 he declined to support Hayden's proposal for an international tribunal. In 1985, Shultz visited Thailand and warned against peace talks with Vietnam, allegedly telling ASEAN "to be extremely cautious in formulating peace proposals for Kampuchea because Vietnam might one day accept them."

The Bush administration also took a hard line against Thailand, especially after the advent of a democratically elected Prime Minister there in 1988. Thailand's new policies -- turning Indochina into a marketplace rather than a battlefield, and engagement with Vietnam and Cambodia -- were seen as a defection from China's and the U.S.' posture. The Far Eastern Economic Review reported that in 1989, U.S. "officials warned that if Thailand abandoned the Cambodian resistance and its leader Sihanouk for the sake of doing business with Phnom Penh it would have to pay a price." Soon after, the American ambassador in Thailand stated that the Khmer Rouge could not be excluded from any future government of Cambodia. The Bush Administration's Secretary of State, James A. Baker, proposed the Khmer Rouge be included.

The Paris Agreement

Another factor was the decision to move the negotiations on Cambodia from the Jakarta regional forum, involving all the Southeast Asian countries, to the world forum in Paris. In 1989, the talks were expanded to include the Great Powers. China's presence brought the Khmer Rouge back to center stage.

The terms of the negotiations, requiring unanimity for any agreement, also effectively gave the Khmer Rouge a veto. Pol Pot consciously used it, according to defectors' reports of briefings that he gave to his commanders in 1988. He revealed plans to delay any elections until his forces controlled the country, and Khieu Samphan, Pol Pot's delegate to the negotiations, stated: "The outside world keeps demanding a political end to the war in Kampuchea. I could end the war now if I wanted, because the outside world is waiting for me. But I am buying time to give you, comrades, the opportunity to carry out all the tasks. If it doesn't end politically and ends militarily, that's good."

The years 1988-91 saw the watering down of diplomatic criticism of the Khmer Rouge genocide. At the first Jakarta Meeting on 28 July 1988, the Indonesian chairman's final communique had noted a Southeast Asian consensus on preventing a return to 'the genocidal policies and practices of the Pol Pot regime.' But on November 3, 1989, U.N. General Assembly watered this down to 'the universally condemned policies and practices of the recent past.' Then the February 1990 Australian proposal, on which the final U.N. Plan was based, referred only to 'the human rights abuses of a recent past.' And the U.N. Plan emasculated this in August 1990, vaguely nodding at 'the policies and practices of the past.' Pol Pot would enjoy 'the same rights, freedoms, and opportunities to participate in the electoral process' as all other Cambodians.

The Paris Agreement was signed in this form in 1991. Under the United Nations Transitional Authority in Cambodia from 1991 to 1993, the Khmer Rouge were allowed to establish a political presence in Phnom Penh for the first time since 1979, in a new compound behind the royal palace. Under U.N. auspices, Khieu Samphan and Son Sen, president and deputy prime minister in the genocidal regime, were appointed to the Supreme National Council, a body that now enshrined Cambodian sovereignty.

Meanwhile, the U.N.'s Human Rights Commission was to consider a draft resolution on Cambodia. The draft referred to "the atrocities reaching the level of genocide committed in particular during the period of Khmer Rouge rule," and called on all states to "detect, arrest, extradite, or bring to trial those who had been responsible for crimes against humanity committed in Cambodia, and prevent the return to governmental positions of those who were responsible for genocidal actions during the period 1975 to 1978."

However, the chairman of the Subcommission of Human Rights decided to drop this text from the agenda after speakers said that it would render a disservice to the United Nations.

Though they profited from the Agreement's protections and concessions, the Khmer Rouge declined to abide by it. They refused to implement the cease-fire, disarming of their troops, or demobilization. They refused to allow any U.N. presence in the territories that they controlled, which they expanded while the other parties generally respected the cease-fire. This allowed the Khmer Rouge to harvest valuable timber for sale to Thailand.

The Khmer Rouge also boycotted the 1993 election and tried to sabotage it. They failed, but continued their military campaign against the elected Cambodian government, a new coalition between the royalists and the former communists led by Hun Sen. In 1994, Cambodia outlawed the Khmer Rouge. It was only now that international action slowly began to build against them.

1994 to the Present

Also in 1994, the U.S. Congress passed the Cambodian Genocide Justice Act. It was now U.S. policy to bring to justice the perpetrators of the crimes against humanity and genocide in Cambodia. The State Department commissioned legal studies, and funded Yale University's Cambodian Genocide Program to collect the historical evidence.

In 1997, a joint appeal to the U.N. by the two Cambodian prime ministers, Hun Sen and Norodom Ranariddh, called for the establishment of a tribunal. As a result, the Secretary General's Special Representative for Human Rights in Cambodia ushered a resolution through the U.N. General Assembly which condemned the Khmer Rouge genocide. A year later, the U.N. commissioned its Group of Experts to examine the evidence against the Khmer Rouge and to recommend whether a tribunal should be established.

In March 1999, the Experts' report was issued by the Secretary General. The report recommended the creation of an international tribunal, but in Manila, or Canberra, or the Hague, not Cambodia, where most of the documents and witnesses could be found. In the meantime, though Pol Pot and Son Sen had died, the surviving Khmer Rouge leaders had all surrendered or been captured.

What has happened now could not easily have been predicted five years ago. Russia, France, Britain and the United States are all in favor of a tribunal; China stands alone in threatening to veto it. A tribunal could be established through the General Assembly, where China doesn't have a veto.

Negotiations are now underway between the U.N. and the Cambodian government, which initially requested an international tribunal but now wants to try the Khmer Rouge leaders itself. Cambodia is now preparing charges of genocide against Nuon Chea and Khieu Samphan as well as Mok, and the former Khmer Rouge security chief Deuch has also been apprehended.

There will likely be a legal accounting in some form. But it's also important to remember that from 1979 to 1994, an international coalition saved the Khmer Rouge from being brought to justice when they were still a threat to Cambodia militarily, and when Pol Pot was alive to face his accusers.

Copyright © 1999 Ben Kiernan All Rights Reserved