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My law and development work has taken me to and from Cambodia eight times in the past six years. On this occasion, however, I had not traveled far from Ann Arbor, less than 200 miles. From the killing fields of Cambodia to the central plains of Ohio, I was being called by the defense in a capital murder trial to testify as an expert on the Khmer Rouge genocide in a case where one Cambodian man had been killed at the hands of another.
The body was found face down on the bathroom floor - a single gun shot wound to the back of the head. To believe the prosecution is to see it as a straight forward case of aggravated murder in the course of a robbery. To believe the defense is to see it as a case of retribution, a revenge killing of a former Khmer Rouge member by one of his victims. One need not resolve the conflicting stories to understand either scenario as yet another in a long list of Cambodian tragedies.
American justice moves at its own pace and on this summer afternoon it moved slowly. I had been waiting over two hours to testify, sitting on the long wooden benches and walking the halls. American lawyers take the physical assets of justice for granted. The courtroom was on the eighth floor of a large modern building, one of four courtrooms complete with separate judge's chambers. In Cambodia we struggle to provide filing cabinets to the clerk's office for court records, or a table for the defenders to have a place to sit during trial. Americans take the human capital devoted to justice for granted as well - a sophisticated independent judge, two professional prosecutors and two experienced defense lawyers. At the end of the Khmer Rouge reign of terror, there were fewer than a dozen trained legal professionals left in the country and it will take a generation or more to reconstruct a workable judicial system.
Ironically, despite the fact that I have labored for over six years to help establish and professionalize similar legal institutions in Cambodia, I harbored substantial doubts about the ability of this proceeding to find truth or dispense justice. The prosecutors, as all advocates are prone to do, were ignoring or marginalizing facts inconsistent with their simple theory of the case. Whatever transpired between the victim and the defendant was likely to have been far more complicated than either side was willing to acknowledge. While pacing the hall outside the courtroom, I could look through the narrow window in the door and catch glimpses of the judge, the defendant and the jury. The thought that kept running through my mind was that the defendant was entitled to a "jury of his peers." What did this mean? Who were his peers? There were certainly no Cambodians on the jury. It was unlikely that any of the jurors were themselves refugees. What would a jury of his peers look like? What emotional connection would this Ohio jury have with this defendant or with his story? I felt wholly inadequate to my task of explaining the magnitude of the horror of the Khmer Rouge, the complete unraveling of the life of an entire nation and its impact on a single nine-year old boy.
What if the victim had been a member of the Khmer Rouge? What would be the appropriate response? I started my work in Cambodia naive in my notions about forgiveness, believing in its simple, cleansing power. I had never confronted first hand an evil too large to be imagined, too deep to be forgotten, or too raw to be forgiven. I have heard numerous stories of revenge killings in the immediate wake of the 1979 Vietnamese "liberation." Many of the incidents involved gruesome beatings and mutilations collectively inflicted by groups of former victims against their now vulnerable oppressors. I know of many more Cambodians who never participated in such acts but who privately harbor detailed fantasies about the revenge they would extract on the Khmer Rouge.
Forgiveness - revenge - reconciliation - retribution - justice - genocide - are all powerful words. As a member of the board of directors of one of the largest legal aid providers in Cambodia, I have struggled with the question of what obligation a legal aid society should have if asked to represent former Khmer Rouge officials in war crimes trials. These are not easy issues. There is no Cambodian equivalent of the ACLU to absorb the political backlash associated with taking ideologically appropriate but publicly unpopular stances. The success or failure of the entire institution of a meaningful role for public defenders in Cambodia often rides on the decisions that the few legal aid societies make in politically charged cases. In addition, and perhaps more importantly, the marching orders of any institutional decision to represent the Khmer Rouge would have to be carried out by Cambodian lawyers, every one of whom would be a surviving victim of the oppressive and inhumane organization or "Angkar" they would be asked to represent and vicariously defend.
On the drive home, I reviewed the testimony in my mind. I covered all of the topics I had planned, explaining who the Khmer Rouge were and describing their revolutionary agenda to eliminate all vestiges of the past when they declared 1975 to be "Year Zero." I described the chaotic evacuation of Phnom Penh and the story of the second mass deportation that took the defendant form the southeastern area of Prey Veng to the northwest province of Batambang. I described the progression of Khmer Rouge policies leading to the systematic destruction of the family: breaking extended families into nuclear units, removing children over age six from their parents, separating children by age and then by gender into mobile work groups, the imposition of forced communal dining and the conscious attempt to change language and align previous familial relations into new allegiances to Angkar. Finally, I described the Vietnamese invasion and "liberation" in 1979.
I ended by discussing the fate of the Khmer Rouge. The Khmer Rouge did not simply disappear. They are with us today, as present in person as the destructive legacy of their oppressive reign. Everywhere you find large groups of Cambodians you can find former Khmer Rouge members. The Prime Minister of Cambodia, Hun Sen, is a former Khmer Rouge member and there are many others working in the Cambodian government. There are former Khmer Rouge members selling noodles at the Central Market in Phnom Penh. There are former Khmer Rouge members in the United States, among the tens of thousands of Cambodian immigrants, and yes it is conceivable that there are former Khmer Rouge members in Ohio. At the end of my testimony, I was thanked and politely excused. The prosecution had no questions. As a matter of litigation strategy, this was tactically correct. Asking questions simply focuses greater attention on the substance of the testimony. From their perspective, the story of the Khmer Rouge was another Cambodian "sideshow," a distraction.
The wheels of American justice move methodically, with their own internal logic and their own momentum. This is not a bad thing. The rule of law as a regulator of individual conduct and as a check on the abuse of state power is an essential component of a civilized society. The rule of law in Cambodia was one of the first and most long-lasting victims of the Khmer Rouge revolution, with repercussions felt to this day. A body had been found in Ohio, a proper police investigation had been conducted, the defendant was apprehended and his rights respected. Now, he was on trial. This is exactly what we aspire to achieve.
Still, juxtaposing of the defendant's fate in Ohio with the fate of the leaders of the Khmer Rouge who perpetrated the genocide in Cambodia is unsettling. While Pol Pot, Brother Number One, is dead, four other leading members of the Khmer Rouge are still very much alive - Ieng Sary, Khieu Samphan, Nuon Chea and Ta Mok. Ieng Sary, the "official" Brother Number Two, defected in 1996 and was granted amnesty by King Sihanouk, expunging a 1979 death sentence handed down against him and Pol Pot when they were tried in absentia for their crimes. Now, Ieng Sary is not only a free man but is the de facto leader of the gem and log-rich Pailin area he administered when it was a guerrilla territory. Khieu Samphan, the long-time public face of the Khmer Rouge, and Nuon Chea, Pol Pot's behind-the-scenes real Brother Number Two, defected in December 1998 and spent that Christmas weekend in the resort city of Kampong Som. The deal that they struck with Prime Minister Hun Sen makes it unlikely that they will ever face trial. Ta Mok, "the Butcher" and last hard liner, was apprehended in March 1999. He remains in custody, his fate still to be determined, as the Cambodian government plays politics with the question of war crimes trials. If tried, the maximum penalty Ta Mok could face would be life in prison. Article 32 of the Cambodian Constitution adopted in September of 1993 outlaws capital punishment. Section 2929.02(a) of the Ohio Revised Code, in contrast, provides for the death penalty in cases of "aggravated murder."
How can one compare a "life" sentence for the 72-year-old Ta Mok with a "life" sentence for the 33-year-old Cambodian defendant in Ohio? There is no universal metric of justice to make such comparisons and there are no easy answers. Nor are there easy ways to address the psychic wounds suffered by individual victims or by an entire nation. The only certain truth is that there are victims everywhere. The body was found face down on the bathroom floor - a single gun shot wound to the back of the head. In April 1975, a small nine-year-old boy was forced to leave Phnom Penh, never to return to the capital city or to the life that he had known. Twenty-four years and many miles later, he sits alone in an Ohio State Prison on trial for his life. Cambodia is filled with ghosts, living and dead, still haunted by the specter of the Khmer Rouge. Some of these manifestations are actual, others imagined, all are real.
Peter J. Hammer received a PhD in economics and a JD from the University of Michigan. He is currently on the Law School faculty, where he oversees the Program for Cambodian Law and Development. He has been deeply involved in establishing a public defender program in Cambodia and is past president and an active member of the advisory council of Legal Aid of Cambodia. The article below is adapted from a piece published in Law Quadrangle Notes , fall/winter, 1999, 8-9.