On February 18, Cambodia’s Ministry of Justice released a statement regarding an opinion article I had published in Radio Free Asia (RFA) a few days earlier, headlined, “Banning Khmer Rouge denialism is a bad move for Cambodia and the world.” I won’t recite what I wrote, although I would note that my article was more of an inquiry into how much we can learn about the minds of people who commit atrocities when most published testimonies are from victims, not perpetrators. The concern I expressed was that Cambodia’s updated law on Khmer Rouge denialism could make it more difficult to collect testimony from the aging generation of perpetrators.
The Justice Ministry’s statement came the same day the National Assembly passed the “Law Against Non-Recognition of the Crimes Committed During the Democratic Kampuchea Period,” which (nearly identical to an existing law) criminalizes any effort to “deny, trivialize, reject or dispute the authenticity of crimes” committed by the Khmer Rouge regime between 1975 and 1979. The Ministry’s critique of my article attracted a bit of publicity. Per the Khmer Times, “British journalist Hutt slammed over genocide law criticism.” (It was nice to see my Britishness referenced on this occasion since the same gutter rag once dubbed me “a man without a nation, a nomad writer without a family.”)
Here is a reply to the Justice Ministry, and I do hope they can answer my questions (re-listed at the end for ease). The Ministry’s statement was published in Khmer, so I apologize if I make some minor translation errors. It seems to me that it makes three main points.
Point One: this isn’t an issue of free speech. “Non-recognition or promotion of these crimes… is not an exercise in freedom of expression… It is a serious insult to the souls of those who lost their lives during that period, as well as a cause of renewed pain for the families of the victims who are still alive today,” it stated. The second claim isn’t necessarily connected to the first, yet if free expression means anything, it means the right to offend. But let’s not get dragged down by philosophical musings on free speech.
You can say the law is justified and legal under international law (I haven’t disputed that). The Justice Ministry could have, for instance, pointed out that the European Court of Human Rights ruled that European states’ Holocaust denial laws are legal under European conventions. However, one could also point out that the U.N. Human Rights Committee argued in 2011 that “Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the [International Covenant on Civil and Political Rights] imposes on States parties in relation to the respect for freedom of opinion and expression.” Yet, imprisoning someone for saying something (however noxious) is about free speech, especially if the reasons for doing so are about contemporary politics (discussed later).
Point Two: critics of the new law haven’t put it into the context of anti-denialism laws in other countries. Indeed, many other countries, including more than a dozen European states, criminalize Holocaust denial or denial of other genocides. In fact, in 2007, the German justice minister proposed that all EU states should criminalize Holocaust denial and ban the public display of Nazi insignia. I didn’t have the space in my RFA article to discuss this, although I never said that Cambodia was exceptional on this matter. But if Phnom Penh wants to compare itself to Europe on free speech, let’s do it properly. Reporters Without Borders’ latest index ranks Cambodia as 151st worst in the world, out of 180 countries, for free speech. Most European countries with Holocaust denial laws are in the top 50. Germany, which arguably has the most stringent Holocaust denial law, is ranked 10th best in the world for free speech.
My opinion on Europe’s Holocaust denial laws, and it may be a minority opinion, is that these laws are not only a violation of freedom of expression, but they haven’t fulfilled their purpose. Most of the countries that passed such laws in the 1990s now have large, very far-right parties, including those with alleged neo-Nazi connections. Germany could this month see the Alternative For Germany, which flirts with neo-Nazism, finish second in the national polls. Timothy Garton Ash was prescient when he warned in 2007, “If anything, the bans and resulting court cases have given them a nimbus of persecution, that far-right populists love to exploit.”
Neither have these laws seemingly done much good in educating the public about past atrocities. The Netherlands, for instance, has very strict laws on Holocaust denial, but a survey from 2023 found that 23 percent of 18-40-year-olds in the country believe that the number of Jews murdered has been greatly exaggerated. A very good survey released this year found, amongst other things, that 38 percent of people in France and 34 percent in Germany think Holocaust denial is common in their countries. Lastly, for context, when European countries passed their anti-Holocaust denial laws, most in the 1990s, it was at a time when neo-Nazi parties were on the ascendancy. One might recall that Jean-Marie Le Pen, a French politician who made a small fortune by selling Holocaust denial books, finished in second place in the French presidential election in 2002.
Which brings me to Point Three of the Justice Ministry’s statement: “Anyone who…promotes the crimes committed during the Democratic Kampuchea regime is tantamount to supporting the return of the genocidal regime as well as wanting a recurrence of the brutal massacre on Cambodian soil.” Passing the legislation, the Justice Ministry says, shows that the ruling Cambodian People’s Party (CPP) is committed to “combating and preventing a brutal genocide” from returning in the future.
Correct me if I’m wrong, but in Cambodia today there is not a large percentage of ultra-Maoists who want to reintroduce a command economy, re-empty the cities, re-engage in class warfare, and exterminate ethnic Vietnamese and Chinese Cambodians. There are no neo-Khmer Rouge political parties. (In fact, the 2001 Law on Outlawing the Group of Democratic Kampuchea would presumably make such a party illegal.) I cannot remember the last time a Cambodian politician even spoke the word “socialism,” let alone “communism.” Nor is there a samizdat press printing Khmer Rouge denial literature.
There are no national surveys, but my guess would be that very few Cambodians question the accepted version of what happened between 1975 and 1979. Most families have one member who lived through those times, so it’s a topic fairly well discussed in homes. Some older government-issued school textbooks (I have a few on my shelf) deal with the period quite well (I do not know about those published since 2019). Moreover, the fact that very few people have been prosecuted under the 2013 law (and that Hun Sen even seemed to forget it existed last year when he demanded a new law) would suggest this is the case.
In 2013, Phnom Penh passed the Law on Refusing to Recognize Crimes Committed in the Period of Democratic Kampuchea Law, which for more than a decade has made comments that “diminish, deny or challenge the existence of crimes or glorify crimes committed during the Democratic Kampuchea” punishable by up to two years in prison and up to a $1,000 fine. I cannot see any major difference in the new law except that it raises the penalties to a maximum of five years in jail and a $12,500 fine.
Justice Minister Koeut Rith has said that because the 2013 law was made before the Extraordinary Chambers in the Courts of Cambodia (ECCC) issued its final findings and closed in 2022, the law needed an update. Fair enough, but if an update was needed, why not revise the 2013 law with a simple amendment to reference the ECCC, and why also increase the punishments? Does the government think that Cambodia has been awash with denialism since 2013 but that it will now suddenly disappear because prison sentences have been increased from two years to five years?
What does the Justice Ministry mean by “prevention”? My contestation is that the new law is intended for contemporary political purposes, chiefly the CPP’s ongoing struggle to silence all political opponents and to burnish its nationalist “credentials.” I’m not alone in connecting this law with domestic politics. In fact, Hun Sen said as much last May when he publicly spoke about this law. “If you see any form of color revolution about to happen, please eliminate it because it will lead to a genocidal war,” he said at the time, linking the political opposition (which he baselessly claims is conspiring to launch coups) with the Khmer Rouge’s atrocities. For more than a decade, the CPP government has said that genocide would return if the party was ever forced from office.
Give ear to something Hun Sen said a few years ago, which sums up how the Cambodian government thinks about this matter: “You loathe the Pol Pot regime but you also oppose those who overthrew Pol Pot. So, what does it mean? It means that they are allies of the Pol Pot regime.” So, I ask, does the Justice Ministry agree with Hun Sen? Does political opposition to the CPP mean someone is pro-Khmer Rouge and pro-genocide (and thus liable to accusations of befouling the new law)? Until we have an answer to that, I cannot see how the Justice Ministry can claim that this law has nothing to do with free speech. I’d very much like to hear Minister Koeut Rith’s opinion on this matter – was Hun Sen wrong or right?
I’ll wrap up by restating my questions to the Justice Ministry before posing two more:
- If the new law was about conforming existing legislation with the ECCC’s final rulings, why not simply amend the 2013 law, and why also increase the punishments in the process?
- If Cambodia’s government is judging itself by European standards on genocide denial laws, will it commit to improving its free speech record to be on par with European standards of free expression more generally?
- Does the Justice Ministry think pro-Khmer Rouge sentiment is prevalent in Cambodian society or has increased since 2013, and if so, why weren’t more people prosecuted under the 2013 law?
- Does the Justice Ministry agree with Hun Sen that someone politically opposed to the CPP government is automatically pro-Khmer Rouge and pro-genocide? In other words, does political opposition to the CPP government equate to denial or trivialization of Khmer Rouge atrocities?
- Can the government specifically quote something said by the opposition movement or any other member of the political opposition since 2013 that it thinks constitutes a denial of Khmer Rouge atrocities? If there are, and these comments were made before February 18, why weren’t these individuals prosecuted under the 2013 law?
- Lastly, can the Justice Ministry tell us if it thinks any published historian or author has violated the terms of the 2013 or the new law, and whether the government will examine future books to assess whether they’re guilty of genocide denial? Moreover, why haven’t historians who present “revisionist” attempts of the Khmer Rouge era been prosecuted under the 2013 law? (If historians or authors aren’t affected, does it mean this law only applies to certain politicians and campaigners?) For instance, will the recently-published “Jungle Heart of the Khmer Rouge: The Memoirs of Phi Phuon, Pol Pot’s Aide-de-Camp, and the Role of Ratanakiri and Its Tribal Minorities on the Cambodian Revolution” by Henri Locard be available for purchase within Cambodia? I believe Locard spoke at several Cambodian universities last year about his book, which a reviewer has said (unfairly, in my view) presents a “narrative [that] serves to explain and justify the actions” of a Khmer Rouge cadre. (“Justify” is included in the new law.) The reviewer’s comment that Locard presents a “revisionist history of the DK regime” is less unfair. As far as I’m aware, the ECCC estimated that approximately 1.7 to 2.2 million people died due to execution, forced labor, starvation, and disease under the Khmer Rouge regime. Will books that estimate a lower number of deaths be judged as infringing on the new law and banned?
I await the Justice Ministry’s response.
