by Howard J. De Nike, J.D., Ph.D.
In 2000, University of Pennsylvania Press published a book containing the trial documents from proceedings conducted in 1979 in Phnom Penh, Cambodia, against the principal leaders of the Khmer Rouge, Pol Pot and Ieng Sary. (
Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary. De Nike, Howard, John Quigley, and Kenneth J. Robinson, eds.) It was the first publication dealing with this trial (officially: The People’s Revolutionary Tribunal) designed to reach a wide audience. In addition to more than 550 pages of materials presented at the tribunal, the volume printed several essays, including my own: “Reflections of a Legal Anthropologist.” (De Nike 2000: 19-28) In this essay I speculated: “It has been remarked that East Germany played a role in the design of the exhibition of torture and execution found at the infamous Khmer Rouge interrogation site preserved at Tuol Sleng. It may well be surmised that guidance was also summoned from the East Bloc in the prosecution of Pol Pot and Ieng Sary.” (2000: 22)
As guesswork goes, the suggestion may not have been so uncanny. Nonetheless, I take satisfaction in having interviewed in 2007, Herr Carlos Foth, who, as a representative of the General Prosecutor’s Office (die Generalstaatsanwaltschaft) of the German Democratic Republic (former East Germany), was sent in July 1979, to advise the newly established government of the People’s Republic of Kampuchea (PRK), specifically to provide counsel regarding the case against Pol Pot and Ieng Sary. My conversation with Herr Foth marked the first instance since 1979 that he has provided such an interview.
On a Saturday afternoon of November 17, 2007, with snow flurries visible outside, I sat for more than two hours with Herr Foth in a Gasthaus called Kaffee Liebig in Gruenau, a suburb, twenty minutes by Stadt-Bahn outside of what was formerly East Berlin.[i][i] Although my partner in conversation is now eighty-five years old, he lacks not in either recall of, nor willingness to discuss in detail, the role he played in Phnom Penh, now nearly thirty years past. Moreover, in addition to his words, Herr Foth provided numerous documents attesting to the counsel he extended to his Cambodian legal colleagues, as well as photographs taken during his three weeks in Phnom Penh.[ii][ii]
(It is well to remember the circumstances of the 1979 proceedings. In January of that year, with the backing of Vietnam’s experienced military forces, breakaway Khmer Rouge elements joined to form the Kampuchean United Front for National Salvation, and rebelled against the Khmer Rouge leadership ensconced in the country’s capital. In the short space of about three weeks Pol Pot’s government of terror abandoned Phnom Penh, fleeing to mountainous sanctuaries to the northeast, from where they waged two decades of warfare and banditry. In the long term, the Khmer Rouge proved a stubborn enemy, first to the Vietnam-support PRK, and later to the United Nations-promoted State of Cambodia and, subsequently, the Royal Kingdom of Cambodia. But in the months following the ouster of the KR from Phnom Penh, the problems facing the nascent regime were immediate and monumental, namely: how to gain the confidence of the Cambodian people, and the world in general, that a new chapter of Cambodian history was at hand, one in which recognition of international norms would be central.)
Reasons for the Assignment
Although presently it is not possible to be confident regarding reasons for Foth’s selection for assignment in Cambodia, at least ostensibly it would appear to have resulted from his previous connection to the case of Hans Globke. In 1963, lawyer Globke, born in 1898, had risen to the post of National Security Advisor to West German Chancellor Konrad Adenauer. Three decades earlier, however, as an up-coming prosecutor in the German state of Prussia, Globke had written a definitive commentary (Kommentare zur deutschen Rassengesetzgebung (1936)) on the Nazi racial purity laws (the infamous Nuremburg Laws). In the words of Ingo Mueller, Globke’s analysis of the race laws’ scope was “the most radical.” (Hitler’s Justice: The Courts of the Third Reich. Cambridge: Harvard University Press (1991), p. 100.) The result was convictions for individuals confronted by aggressive Nazi prosecutors, who argued that the law, even where the facts did not fit, should be interpreted broadly “in order to protect German honor, in particular the sexual honor of the citizen of German blood” (citation omitted). (Mueller 1991: 100) Because, like Pol Pot and Ieng Sary, Globke was beyond the personal jurisdiction of the court, his trial in East Germany was conducted in absentia. The prosecution’s theory in 1963 was that in rendering a legally corrupt commentary on the racial purity laws of 1936, Globke had laid the foundation for the genocide that followed. (For further information, see: Foth, Carlos, “Die Nuernberger Prinzipien – ein Umbruch im Voelkerrecht,” in
Bulletein fuer Faschismus – Weltkreigsforschung, Vol. 27, pp. 44-70 (2006).)
Foth today declares that he gladly accepted the assignment to Phnom Penh, recognizing its importance to achieving justice for Cambodians, and as a step to resolving the past, considerations also confronted in the Globke matter.[iii][iii]
A series of invitations to “Camarade Carlos Foth” to participate in events was extended by Keo Chanda, President of the Information, Press and Culture Ministry, commencing on August 5, 1979, with a request to attend an artistic presentation at Chatamok Theater, future site of the tribunal itself. This was followed by a call to a private dinner the next day at the Ministry of Foreign Affairs. Keo Chanda simultaneously served as the Presiding Judge of the People’s Revolutionary Tribunal.[iv][iv]
Foth’s efforts regarding the tribunal pivot around two documents, copies of which he provided during our discussion.[v][v] The first is designated a “decree” of the Revolutionary People’s Council of Kampuchea, People’s Republic of Kampuchea.”[vi][vi] A Preamble alludes to “evidence and information … of the most severe crimes against the population in the recent period since 17 April, 1975.” This evidence is, furthermore, considered “a request to the Revolutionary People’s Council of Kampuchea to bring to justice those responsible for these deeds according to the degree of their individual guilt.” Thus the groundwork for the tribunal was laid.
The thirteen paragraphs constituting the body of the decree set forth the composition of the tribunal and various procedural rules. Responsibility for executing the work of the proceedings is reserved to the President of the People’s Court (Paragraph 2). Eight to ten laypersons shall be chosen to hear the proceedings (Paragraph 3). Paragraphs 4 and 6, respectively, call for designation of a Chief Prosecutor and defense counsel. Paragraphs 9 through 10c allow for notice to the accused, and empower the court to proceed in the absence of the defendant, including authority to impose a sentence of death. Should an accused, however, later be brought personally before the court, either by surrender or capture, that person “shall have the right to demand a new trial” (Paragraph 10e). This latter provision, while serving as an obvious escape clause for challenges to the proceedings, is also a standard proviso where
in absentia trials are permitted.
“Goals and Tasks of the Defense”
The above-described decree forms the background for the primary contribution of Herr Foth, namely his role as Berater, or advisor, to the proceedings. This function is encompassed in the second document: “Goals and Tasks of the Defense” (Ziele und Aufgaben der Verteidigung). It consists of four pages that flow along two paths. The first is a conventional description of strategic and tactical matters natural to the defense of an accused charged with commission of serious offenses. The second set of “goals and tasks” concerns advice reflecting the urgencies of the Cold War, as perceived in particular from the perspective of the Soviet Bloc. The combination of the two themes is shown in the two opening pronouncements: that the trial should produce “irrefutable evidence before the world public (of)”:
Fair proceedings for the accused; (and that)
II. The aggressors in Peking are complicit and protectors of the accused.
(Beneath the reference to Peking appears a handwritten inter-lineation: “or forced, by means of the trial to recognize the new government.”)
Although Foth’s text is headed “Goals and Tasks of the Defense,” it is evident that the East German advisor wished that it: a) serve as a script for the trial generally; and, b) offer guidance on broad political questions raised by the proceedings, drawing presumably upon experience stemming from the case seventeen years earlier against Hans Globke. In some respects the combination of goals described may appear incongruous, but perhaps no more so than the unprecedented nature of the case itself, involving, as it did, an effort to impose justice on individuals accused of causing more than a million deaths in the concluding chapter of a conflict spanning roughly two decades. One that engaged the world’s superpowers, and featured rebellion, civil war (with more than five years of heavy U.S. aerial bombardment), invasion, liberation, and a still-unresolved armed conflict.
East German Recommendations
An intention to communicate regarding the tribunal to an audience beyond the borders of Cambodia is made plain in several of Foth’s recommendations. Paragraph 1.1 urges “transmission of an invitation to the International Red Cross in Geneva,” while Paragraph 1.2 calls for sending “corresponding information and invitation to the General Secretary of the International Association of Democratic Lawyers, Joe Nordmann, in Brussels.” In this context the statement of “Goals and Tasks” notes that time is of the essence, specifically directing that the agency of the Ambassador of the Socialist Republic of Vietnam be used to coordinate selection of defense counsel in addition to those assigned from the People’s Republic of Kampuchea.
Regarding recommended contentions of Defense Counsel, the document counsels questioning the tribunal’s bias and lack of jurisdiction. Firstly (Paragraph 2, et seq.), the Court is composed entirely of victims (or family of victims), and, by implication, cannot therefore be impartial. Secondly, the court cannot legally try Pol Pot and Ieng Sary because they “still exercise power in the territory of Cambodia.” Following these suggestions, however, the memorandum slides into its “script” mode by offering rebuttal arguments for use by the prosecution. Specifically, according to applicable United Nations provisions embodying “the territorial principle,” the People’s Republic of Kampuchea possesses “the right to prosecute crimes committed in its territory.” Moreover, “failure of a State” to prosecute may itself be a violation of a state’s “responsibilities to 3
rd party states.” This reflects the author’s awareness of a state’s “duty to prosecute” under provisions of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. (Articles 5 and 6.)
As to the authority of the court to proceed in the absence of the accused, the memorandum again supplies both arguments usable by the prosecution, as well as the defense. Since a “fugitive defendant” has chosen not “to appear and defend himself,” the circumstances are to be distinguished from those in which “an accused is unable to stand trial”; the accused is himself “responsible for the disadvantages that his absence produces.” In any event, “if he presents himself” (or is arrested), “under the rules of the Decree, (he) has the right to a new proceeding.”
Next, the “goals and tasks” memorandum advises the availability of international experts (from, e.g., Switzerland), capable of authenticating questioned documents, while alluding to the usefulness of such witnesses during a1966 proceedings against the President of the German Federal Republic (i.e., West Germany) for Nazi era offenses.
In a manner that might be understood in large measure as sardonic, the memorandum urges the defense to summon “persons from 3rd states, who during the period since April 17, 1975, were in Phnom Penh, and are able to refute statements of the prosecution, especially, as appropriate, from the People’s Republic of China” (emphasis added). The likelihood that the Chinese would respond to such a summons was nil.
The same might be said about the penultimate section listing “goals and tasks,” which proposes that “since the perversity of the crimes being tried is so absurd for a normal mind,” the defendants adopt “mental illness” or “lack of awareness of illegality” as their plea for being found not guilty. The suggestion is that witnesses be invited, particularly “Chinese witnesses (who) can be questioned accordingly by international psychiatric specialists and thereby resolve the issues in question.” The memorandum’s author hastens, however, to declare that such claims should be dismissed as they were following WWII. As it was rejected with the Nazis, where “it was attempted to justify the gassing and extermination of the Jews and the greater portion of the Slavic populations, as well as communists” due to the crisis of the times, so also should a claim of moral imperative be refused for the mass killing in Cambodia. The words themselves are eloquent:
In the name of the millions of dead, as well as the living, the survivors in Kampuchea, this claim and theory must be rejected, in the name of indisputable and not incidental force of the right to life.
At the conclusion of the trial on 19 August 1979, both Pol Pot and Ieng Sary were convicted and sentenced to death. It is difficult to state with assuredness the degree to which the counsel of Carlos Foth affected the proceedings. His participation may have served primarily to demonstrate solidarity between the German Democratic Republic and the emergent People’s Republic of Kampuchea, as well as providing a basis for drawing parallels, including relevant legal points, between the Nazi and Khmer Rouge regimes. On the other hand, much of the argumentation of Hope R. Stevens, American counsel for the defense,[vii][vii] was prefigured in Foth’s enumeration of the “Goals and Tasks of the Defense.” In particular, Mr. Stevens urged a form of shared-guilt for the defendants’ admitted horrors to, among others, “the false socialist leaders of fascist China ….”
[viii][viii] This notion, of course, was not original to Herr Foth. Nonetheless, its central place in the closing argument on behalf of the accused is noteworthy. [ix][ix]
In another setting I have described the 1979 case in Phnom Penh as “the bastard child of the International Human Rights Movement.” (De Nike 2006: 208) In short, despite express intentions and efforts to reach out to the broader public signaled, for example, by the invitation to the International Red Cross in Geneva,[x][x] Cold War politics served to shunt the proceedings to the sidelines, then and later. Thus, although the record gathered in 1979 was competently assembled and timely, it was largely ignored. (And, what is worse, the Khmer Rouge continued to wage bloody armed attacks, and to be recognized diplomatically, by the U.S. and others, long after the horrific nature and scope of its rule were well understood.). Moreover, “add(ing) insult to injury,” many have chosen to “(find) fault with the procedures employed and to (ignore) the value of what was achieved despite overwhelming obstacles.” (De Nike 2006: 210) Thus, the intended impact of the 1979 trial, particularly outside Cambodia, remained largely unmet.
Nowadays, Carlos Foth follows closely events taking place at the Extraordinary Chambers of the Courts of Cambodia, as charges against surviving Khmer Rouge leadership make their way toward judgment. His professional retirement, however, is far from sedentary. To the contrary, Herr Foth serves today as Deputy Chairperson of the International Association of Lawyers Against Nuclear Arms, an organization of jurists opposing atomic, biological, and chemical weapons (http://www.ialana.de/),
Howard J. De Nike is a lawyer and cultural anthropologist. He teaches a course in Phnom Penh on the Khmer Rouge Tribunal to students from the University of San Francisco School of Law.