Thayer Consultancy

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Background Briefing: Cambodia Defending the Khmer Rouge Carlyle A. Thayer January 11, 2012

[clientnamedeleged] ThelawyersdefendingNuonCheatodaycondemnedallegedremarksbyCambodian PremierHunSendescribingtheirclientasa"killer"whosetestimonywas"deceitful". Thecomments,wereaveryclearstatementabouttheguiltofNuonCheabyahigh governmentofficial,defencelawyerMichielPestmancomplainedtoCambodia'sUN backed court, as hearings resumed in a landmark atrocities trial. Pestman said the comments required "a very strong response" by the court, which has long been doggedbyallegationsofpoliticalinterference."It'snotuptotheprimeministerto decide whether my client is guilty," Pestman told the judges. "We request you to officiallycondemnthesestatementswhichprejudiceourclientandviolatehisrights toafairtrialandasktheprimeministertorefrainfromsuchremarksinthefuture." What is your assessment of this argument: The Vietnamese army going into Cambodia was first and foremost a retaliation against the Khmer Rouge for unprovokedbordervillageattacks,suchasatBaChuc.Therewerealsotradeissues, not least being that the Khmer Rouge was unnecessarily deporting Vietnamese fishermenandotherslivingandworkinginCambodia.LikewiththeU.S.andending the Holocaust, saving the Cambodian people was a collateral benefit of Vietnam's incursion into Cambodia. Nonetheless, should Vietnam be commended for the positiveoutcomesoftheirmilitaryactions. TenyearsaftertheUSinvasionofAfghanistanandIraq,thosecountriesarestillin the throes of instability and violence. On the other hand, after Vietnam left Cambodia, the latter has been able to set up a democratic government of its own which has steered the country to stable economic development over the past decade.IsitfairtomakesuchcomparisontoillustratethefactthatVietnamshould deservegreaterinternationalrecognitioninthisregard? Q1.Whatisyouranalysisoftheremarksmadebythelawyers? NuonChea'sdefencelawyerisdoingexactlywhatheshouldbedoingdefendinghis client.Insocietiesthatupholdtheruleoflawanddemocracy,adefendantmustbe considered innocent until proven guilty no matter how serious the charge. It is an offense bordering on contempt of court for a government official to make statementsthatinterferewithcourtproceedings.InthecaseofCambodiasections oftheinternationalcommunityhavegravereservationsabouttheindependenceof

2 theCambodianjudiciaryfromgovernmentinfluence.PrimeMinisterHunSenshould not have made the comments hedid. If the law is not upheld in this manner then society is subject to law of the jungle where might makes right. The Khmer Rouge trialsmustsetahighstandardsojusticecanbeservedinthecaseofvictimsofthe Khmer Rouge but to demonstrate to other government leaders that they will punishedforcrimesagainsthumanityincludingtheirownpeople. Q2. There is no question that Vietnam was attacked by the Khmer Rouge regime alongitsborderandthatanincursioninlate1977inretaliationdidnotachieveits purpose.TheKhmerRougeregimekeptattackingvillagesalongtheborder.Vietnam acted primarily in selfdefence. It made the mistake of declaring the situation irreversible and lost the support of the international community. Nonetheless Vietnam'sinterventiondidstopmassmurderbytheKhmerRougeandresuscitated theCambodianpeople.IknowfromfirsthandasIfirstvisitedCambodiainAugust 1981. While Vietnam's actions in restoring peace to Cambodia should be acknowledged, Vietnam's intervention was not primarily a humanitarian intervention. Vietnam acted in selfdefense in using force but it remained in Cambodia for a decade. Annual votes at the UN General Assembly went against Vietnam. The lesson here is Vietnam should have sought support from the internationalcommunityandsetadeadlineforthewithdrawalofitsmilitaryforces muchsooner. Q3. The U.S. invasion of Iraq and intervention in Afghanistan are different in international law as the former did not have UN approval, while the latter was sanctioned.BoththeUSandVietnamfacedviolentresistanceduringtheirpresence in Iraq and Cambodia, respectively. Cambodia also experienced a few years of violence after Vietnamese forces withdrew in September 1989. The Khmer Rouge kept up violence even after the 1991 Paris Peace Agreements were signed. This violence continued to 1997. In this respect Iraq and Cambodia may be compared. ButVietnamachievedsuccess.ItnurturedthePeople'sRepublicofKampuchea(PRK) and set up an effective government and military structure. The PRK became the State of Cambodia in 1989 and remained in power despite attempts by the resistance forces to destabilize it. And the Hun Sen regime has remained in power from the first UN elections in May 1993 (when I was a UN observer) until the present. WhileVietnam'saccomplishmentshouldbeacknowledged,italsoneedstobesaid that Cambodia experienced marked violence in 1997 and the collapse of the coalitiongovernment.Stabilitywasnotrestoreduntilayearafterthe1998elections. It remains to be seen whether the USinstalled government in Iraq can withstand presentchallenges,successfullyconductelections,andremaininplacefifteenyears from now. I once praised Vietnam's accomplishment in Cambodia to a senior Vietnamese military official who had been in Cambodia. He responded, "Cambodia wasamiracle."