A very strange complaint to the ICC

[Published by the Cambodia Herald on 17 October 2014.]

On 7 October, Richard Rogers, a member of a British law firm with the modest name of Global Diligence (if I were to start a law firm, I would name it Intergalactic Goodness) announced that he had filed a complaint with the International Criminal Court (ICC), asking the court to investigate and then prosecute alleged “crimes against humanity” in Cambodia. These alleged crimes have mainly to do with “land grabbing”.

For some reason, however, Rogers is not eager to share the details of his complaint (officially a “communication” in ICC jargon) with the public in Cambodia. An “executive summary” of the complaint has been widely distributed, but several requests from Cambodia for the full complaint have been ignored – even though it appears to have been given to at least one journalist outside Cambodia. This makes it impossible to know whether or not the rather unspecific allegations in the summary are similarly vague in the complaint itself.

The executive summary begins with the charge – attributed to an anonymous Cambodian “victim” – that the government is attempting to kill off 70 percent of the country’s population: “70% of the population has to disappear, so that 30% can live on”.

The “victim” doesn’t appear to have explained why Cambodia’s current rulers couldn’t be satisfied with, say, 60% of the population disappearing, so that 40% could live on, or even a 50-50 split. Probably we are meant to think that they wanted to outdo the Khmer Rouge, who on most estimates killed only a fourth or a third of the population. And the current “victim” in fact thinks that things were better back then: “Under Pol Pot we died quickly, but we kept our forests. Under the democratic system it is a slow, protracted death.”*

So it appears that the complaint is filed on behalf of people who think that genocide is less criminal than cutting down trees, and who also think that a quick murder by Khmer Rouge gangsters is better than having to live in Cambodia today. No wonder they have to go outside Cambodia to seek a hearing for such nonsense.

Everybody’s a culprit

The complaint does not name any individual as a perpetrator of the alleged crimes against humanity. Instead, the diligent British lawyer blames something he calls “the Ruling Elite”. He puts this phrase in upper case, as though it were the name of an actual organisation with a defined membership, like the Gestapo or US Air Force or House of Commons. According to the summary, the “Ruling Elite” consists of “senior members of the Royal Government of Cambodia, senior members of State security forces, and government-connected business leaders”.

That is the only definition, and, as is evident from even a moment’s thought, it is no definition at all: it doesn’t say “all” members of those categories, so it doesn’t allow you to decide whether any particular individual is part of the Ruling Elite.

That lack of precision is deliberate; it serves a function. It allows dishonest people to blame anyone and everyone who might be considered part of the Ruling Elite to be responsible for every real or imagined misdeed of anyone else who can be considered part of the Ruling Elite.

For example, a building company saves money by using poor-quality cement, and the building under construction collapses. Blame “senior members” of the government! After all, they and the crooked businessman who owns the building company are all the same: members of the Ruling Elite. In fact, blame the competitors of the crooked businessman too: if they’re doing well, they must also be part of the Ruling Elite.

As a social-political category, a ruling elite (in lower case) could probably be said to exist in every country of the world. Its composition will vary with the different circumstances of different countries, but presumably it includes senior members of the government, who rely on state security forces for protection against external or internal enemies and who listen to and interact with people who are important to the country’s economy.

The existence of such a social-political category does not, however, make everyone in the category responsible for the actions of everyone else in the category. But that is what Rogers’ complaint attempts to say. It presents a social-political category as though it were a criminal conspiracy, like the Mafia. It does this, not by presenting any evidence of a conspiracy, but by writing “ruling elite” with upper case letters: “Ruling Elite”. (This would not work in the Khmer language, which doesn’t have upper case letters. If they translate their charges into Khmer, it will be interesting to see how Rogers and his fellow diligent globalists try to maintain their English obfuscation.)

Historical ignorance

Despite having spent some time in Cambodia, Rogers seems not to have learned much about it. For example, the executive summary states: “After seizing power in the 1980s, the Ruling Elite …”.

Excuse me, Mr Rogers, but who ruled Cambodia between January 1979 and whenever it was in the 1980s that the Ruling Elite “seized power”? That is, who exactly did they seize it from? The only seizure of power that had something to do with senior members of the present government was the overthrow of the Khmer Rouge in January 1979.

Other parts are no better. “Capitalising on widespread tenure insecurity resulting from decades of civil war, the Ruling Elite have illegally seized and re-allocated millions of hectares of valuable land from poor Cambodians …”

“Widespread tenure insecurity”! That is certainly the most gentle possible description of the Khmer Rouge uprooting of the entire population. Rogers should ask his clients for a few more details. They could tell him that, in addition to moving much of the population around the country according to their insane plans, the Khmer Rouge physically destroyed the pre-1975 records of ownership of immovable property. This meant that, after the KR were overthrown, there were few if any records of who had owned what.

This was obviously a situation capable of causing huge confusion and conflicts. Despite land-titling efforts by the government, most recently in 2012-13, numerous land disputes continue or arise anew. Various ownership titles are issued by different levels of government, and it is quite possible for these to conflict with each other, not to mention with local views on who land “really” belongs to because of years of occupation and use.

But to Richard Rogers, diligently looking the other way, the ongoing complications as a result of this history simply don’t exist: all these land disputes are just “land grabbing” by the Ruling Elite.

And then, of course, there is political murder. According to the summary of the complaint, “it is estimated that the Ruling Elite has orchestrated over 300 politically motivated murders since the 1990s”. Estimated by whom? Is the estimate reliable?

Many Cambodians are members of political parties, often without taking a very active part. Especially in rural areas, where political rallies often conclude with gifts from the organisers to the audience, poor people may be nominal members of several parties. If a dispute in a village ends in a killing, it is quite possible that the victim is a member of a party, and the party’s leaders may believe, or find it convenient to pretend to believe, that the motive for the killing was political. (And yes, Mr Rogers, disputes, including land disputes, do occur in Cambodia in which none of the parties could be described as part of either the ruling elite or the Ruling Elite.) In the absence of specifics, it would be wise to view such “estimates” with a great deal of caution.

Stranger and stranger

I mentioned above that Global Diligence had provided the content of Rogers’ complaint to at least one journalist outside Cambodia. This was Megha Bahree of Forbes Asia, who was able to describe it even before the complaint was filed with the ICC prosecutor, which seems a bit discourteous to the ICC.

Bahree’s article contains only one allegation that is not present in the executive summary. It is a particularly bizarre one, focusing on what has or hasn’t changed in the governing party since the 1980s: “In practice, both the composition and the internal structure of the party remains [sic] the same to this day, the complaint alleges, and the ruling Cambodian Peoples [sic] Party has retained the network of provincial apparatchiks set up under its earlier avatar, ensuring full control of the resource-rich provinces.”

I don’t know anything about the internal structure of the CPP, and I very much doubt that Richard Rogers does either. But it is obvious that the composition has changed tremendously since the early 1980s, when the party was very small and most Cambodians were too preoccupied with trying to restore a normal life to spend much time on party politics.

In any case, what is the basis of the evident assumption that there was some obligation on the CPP to change its composition or its structure? Is it Rogers’ view that it is a crime against humanity for a political party to have members who have been in the party for several decades?

The implication seems to be that in the 1980s the CPP (then called the Kampuchean People’s Revolutionary Party) was some sort of criminal conspiracy. That was undoubtedly the view of the Khmer Rouge leaders who had been overthrown by it, but it is not the judgment of impartial historians. Has Rogers perhaps picked up a jaundiced outlook from the “victim” quoted at the beginning of his summary, who regards the KR as more merciful than “the democratic system”?

Similarly, it is difficult to understand the implication that the CPP was obliged to jettison its officials from the 1980s. Rogers of course has the democratic right to call them “apparatchiks”, but name-calling is not sufficient reason to fire provincial officials who coordinated the rebuilding of Cambodia, often at the risk of assassination by the mercifully quick KR.

And yes, the elected government formed by the CPP has control of the provinces – not just the resource-rich ones, but all of them. Is it really a crime against humanity that the losing parties in elections aren’t allowed to appoint provincial officials?

[In the near future, I hope to explore possible ties between the Global Diligence complaint and an earlier attempt to use the ICC in Cambodian politics.]


* It should be noted that the Khmer Rouge deforested large areas of Cambodia, and many of its victims were killed over an extended period rather than quickly, through overwork, hunger, lack of medical care etc.

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