As the Cambodian and international judges in the Extraordinary Chambers in the Courts of Cambodia meet to hammer out differences on the internal rules for the long-awaited Khmer Rouge tribunal, a former US statesman said the trial of Khmer Rouge leaders could divide the Cambodian people, shine unfavorable light on US policies in Southeast Asia during the 1970s and might not be valuable after all.
Ambassador John Gunther Dean, the last US diplomat to leave Cambodia before the Khmer Rouge takeover in April 1975, said he was skeptical a tribunal would be helpful to Cambodia's rebirth and reconstruction after years of civil strife.
Dean questioned the value of a tribunal for Cambodia's youth and argued that the court's proposed $56 million budget would be better put to schools and hospitals.
In an exclusive interview with VOA Khmer at the Jimmy Carter Center in Atlanta, Georgia, Ambassador John Gunther Dean, who served in Cambodia from 1974 to 1975, said he did not see the use of putting the former Khmer Rouge leaders on trial because most of them had died, while world knows well the atrocities the Khmer Rouge committed.
"If you go to Phnom Penh, and you see the torture chambers and the mountains of skulls and bones, you know what happened," he said. "They are the best proof. People will never forget."
Dean, 81, who now lives in Paris, traveled to the Jimmy Carter Center in late April to donate professional correspondence and other documents to the US government's National Archives. Dean said he did not believe the trial of the Khmer Rouge leaders was going to meaningfully assist the young generation of Cambodians and, therefore, the money budgeted for the trial should be spent on more positive, practical needs.
"I think the $56 million which has been collected to convict half a dozen people, wouldn't it be much better to use that to build some hospitals under the name of 'Lest We Forget'?" he asked.
William Shawcross is the author of "Sideshow: Kissinger, Nixon and the Destruction of Cambodia." Speaking to VOA by phone from his home in England, Shawcross said he did not think the trial of the Khmer Rouge leaders would accomplish much because after years of negotiations with the UN, Prime Minister Hun Sen's government was able to gain significant concessions from international legal negotiators and, effectively, water down the standards.
Shawcross said he did not think crucial figures such as Ieng Sary would be indicted because the Hun Sen government is protecting them. The money should be put to better use, he said, perhaps for a long-term, well-funded plan to build up the judiciary.
"The trial is costing $56 million at least," Shawcross said. "That money would have been better spent on beginning to create a proper judicial, legal and court system inside Cambodia, throughout the country, [rather] than spending it on this tribunal, which much of this money will go to foreign lawyers and some of it will go to corrupt government officials, but poor Cambodia itself still has a very inadequate legal system."
Shawcross said he was concerned about the evidence, recollections and identification process for a Khmer Rouge tribunal because the crimes were committed some 30 years ago.
Shawcross, whose father was the Chief Prosecutor for the United Kingdom at Nuremberg War Crime Trial of the Nazi leaders, said the Allies 60 years ago felt that a trial of Nazi war criminals should end five or six years after the end of World War II because proof would become much more difficult as the years went on.
"With the passage of time, identification in particular became less reliable, and therefore conviction was also less reliable. And therefore the trial should stop. I think in the case of the Khmer Rouge, that's possibly also true."
Charles Twining served as US Ambassador to Cambodia. Now retired and living on a farm in the US state of Maryland, Twining said that during his time in Cambodia, in the early to mid-1990s, Cambodians were very divided over a tribunal. Personally, he said, he believes Cambodia needs to be publicly informed of the truth about the 1970s.
"I know there are strong views on both sides," he said. "Is it good, is it not good? Is it better to leave things sort of alone, let the past be the past and look at the future? But I do think it [the tribunal] could be part of the healing process."
Youk Chhang is the director of the Documentation Center of Cambodia. His non-profit organization in Phnom Penh has been collecting documents from the Khmer Rouge era since 1995 with funds from the United States, primarily the US Agency for International Development. In a telephone interview with VOA Khmer, Youk Chhang said he disagreed with former ambassador Dean.
Although 30 years have passed, millions of Cambodians still want to see a trial of the Khmer Rouge leaders, Youk Chhang said.
"Besides, the money to be spent on the tribunal is the voluntary donations from the world community to help Cambodia build its state of law," he said. "Therefore, it would not affect the government's budget to rebuild the nation at all."
In a nationwide survey in 2000, approximately 70 percent of Cambodians expressed their desire to see the former Khmer Rouge leaders on trial, said Chea Vannath, the former director of the Cambodian Center for Social Development.
"Most of them want to understand what happened," she said. "They want to know who are responsible for the killings. They want to find who are responsible for these crimes."
In nearly four years of Khmer Rouge rule, an estimated 1.7 million Cambodians died of starvation, disease, overwork, and extrajudicial killings.
The United Nations and Cambodia agreed in 2003 to put the former leaders on trial for genocide and human rights violations.
Since then, Pol Pot and his military commander, Ta Mok, have died, escaping justice. Other top Khmer Rouge leaders still alive include the regime's Minister of Foreign Affairs Ieng Sary, National Assembly President Nuon Chea, President Khieu Samphan and Security Prison Chief Duch. They are in their 70s and aging. Except Duch, none have been formally declared suspects or detained.
US Ambassador Charles Ray, who served in Cambodia from 2002 to 2005, is now Deputy Assistant Secretary of Defense for POW and Missing Personnel Affairs. Ray told VOA Khmer by telephone that building schools or hospitals to honor the victims of the Khmer Rouge regime was a good idea, but one that would not heal the psyches of the Cambodian people, most of whom suffered under the Khmer Rouge.
"This issue has inhibited, I think, a lot of the development in Cambodia," he said. "This is an issue of the long-term health of Cambodia's culture and society. And that impacts its economic and political developments. So you have some kind of official closure to this horrible chapter of history."
Ray said it was impossible to have a perfect tribunal, but he said the world "should not let the perfect become the enemy of the good, or even the just acceptable.'' "I think Cambodians need this," he said.
"I think the international community needs this, as well, to help us get a better understanding of how things like this could happen—so that maybe in the future, if we can't prevent them, at least we can minimize them or keep them from being so devastating."
Seng Theary is the director of the Center of Social Development in Cambodia. She said it is important to struggle to build sustainable legal frameworks in Cambodia and elsewhere to bring suspects accused of gross human rights violations to trial.
The emphasis should be put on the quality and fairness and credibility of such trials, she said. If the Khmer Rouge tribunal cannot be free of political manipulation or meet minimal international judicial standards, then she agrees, she said, with Dean: the millions of dollars would be better used to improve Cambodia's poor health-care system.
"What I agree with him is that if we try them, but cannot do it fairly, we should not have the trial," she said. "I agree that it's better to use the $56 million to build something or do something for social development."
Dean said a tribunal runs counter to US global political interests today. He said he is concerned that lawyers defending Khmer Rouge suspects will point to the US's messy role in Cambodia in the 1970s and will argue that the Khmer Rouge were reasonable, willing to enter into a coalition government with the Lon Nol government, before their backs were against the wall.
"And the defense for the Khmer Rouge is going to say, 'Hey, but we were willing to enter into a coalition government,'" Dean said. "And you even have the cables from Lon Nol saying, 'Give us a coalition government.'" Dean said he sent numerous telegrams to the US State Department asking for a "controlled solution" for Cambodia, to prevent the total takeover of the Khmer Rouge, but was turned down.
Shawcross said Dean did put forward suggestions to find a negotiated solution to Cambodia's bloody civil war in the 1970s. It would have been much better to have a negotiated solution, he said, where "the Khmer Rouge takeover of Cambodia had been controlled, not uncontrolled as it was in April 1975." Shawcross said US policy towards Cambodia in the 1970s was badly flawed, but he doubted any harm would come of a reexamination.
"It's not going to be the main focus of the trial," he said. "The main focus of the trial would be on these individuals who committed these crimes against the Cambodian people."
Former ambassador Ray said closure for the past meant old wounds should not be covered.
"If we try to ignore the past as it had never happened, it's not going to be better," he said. "Let the truth be known."
Director of Center for Social Development Seng Theary said China should be worried about a tribunal, because China supported the extreme regime when it was in power. The trial on human rights violations and genocide is purposefully limited to alleged crimes between April 1975 and January 1979, she said.
"For example, China could be embarrassed in the proceedings because the issue of China's support of the Khmer Rouge could be brought up," she said. "Other countries could be also embarrassed but in this tribunal, they should not have anything to worry about."
Youk Chhang said the US has confronted its past since the beginning. The US is the only country that has spent several million dollars helping his center gather its documents, without which a trial would be difficult.
"This court will have a hard time moving forward without support in terms of documents and evidence that the US helps gather," he said. "Therefore, I think the US has taken a noble stance in facing its past."
Current US ambassador to Cambodia, Joseph Mussomeli, last year told a group of Khmer Rouge victims and perpetrators that a tribunal was a necessary first step in healing three decades of festering wounds. Mussomeli said the victims of the Khmer Rouge genocide demanded justice and deserved justice.
The UN-assisted Khmer Rouge tribunal is a Cambodian court with international participation. Any decision either to prosecute or to convict Khmer Rouge leaders will need the approval of three Cambodian prosecutors or judges with at least one international counterpart.
The tribunal is expected to cost $56 million and take at least three years. Almost one year has passed and no one has been charged or officially accused. The Cambodian and international judges have not even been able to adopt internal rules necessary for the tribunal.
The courts recently broke a deadlock after the Cambodian Bar Association demanded foreign lawyers pay almost $5,000 over a three-year period. The bar ultimately relented, opening the chance for talks now taking place.
The Cambodian government has been criticized for lacking the political will to try former Khmer Rouge leaders and dragging its feet. The government denies this, reminding critics that in 1997 it was the Cambodian government who wrote a letter to the United Nations asking for help.
Brad Adams, director of Human Rights Watch Asia, recently told VOA Khmer by telephone that he did not think the Cambodian government had a genuine intention to put the Khmer Rouge leaders on trial.
At the time, Adams said, first prime minister Norodom Ranariddh and second prime minister Hun Sen wrote the UN because they were competing for support of the international community and the Cambodian public for political power.
"They needed to appeal to public opinion in Cambodia to show that they were strong against the Khmer Rouge," Adams said. "Each side was accusing the other of supporting the Khmer Rouge. Also they wanted to gain international legitimacy."
Hun Sen now doesn't want a fair, independent trial to go forward, Adams said.
"Then there will be another problem in a few months, or something else," Adams said, "because [Hun Sen] fundamentally didn't want this trial to go ahead."
Historian Peter Maguire, who has written a book focusing on the Khmer Rouge tribunal, "Facing Death in Cambodia," told VOA Khmer by phone last week he did not think the Hun Sen government had the political will to conduct a trial.
"My gut feeling is that they will continue to find reasons to delay and drag this thing out, and eventually the United Nations will lose patience," he said, adding, "I would be happy to be wrong."
Maguire, whose great grandfather served as an American judge at the Nuremberg trials, said adopting the internal rules is the easy part. Additional, more robust challenges, he said, will surface when the court's proceedings begin.
"Right now it's like a football game," he said. "They are talking about the rules. OK, the goal has to be this big, the field has to be this big. These are easy questions compared to the questions that this mixed tribunal will face."
The international and Cambodian judges have been meeting in Phnom Penh since June 4 to attempt to approve the internal rules for the Khmer Rouge tribunal. The judges are expected to make an announcement on the result of the meeting on Wednesday. The rules are neccessary before the trials for crimes against humanity and genocide can begin.
Some observers, like Ambassador Dean, assert that the Cambodian people and US strategic interests will be best served if these trials don't get off the ground.