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Bridging ideals and realities

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Ahead of the release of a new book on international law, legal scholar Peter Maguire discusses the KRT and its ‘glass half-full' optimism.

Photo by:

TRACEY SHELTON, PHOTO SUPPLIED

Peter Maguire (inset), author of Facing Death in Cambodia, and Cambodia's war crimes court.

What is the subject of your new book?  

America's relationship with international law, the Nuremberg trials, and the laws of war in the post 9/11 era.  In the spring of 2001, I defined the American duality as "the yawning chasm between our words and deeds" after the 9/11 this duality was forced out into the open for all to see.

In your book Facing Death in Cambodia, you contrast "perfect" international justice with justice that victims can "see, smell and feel". How do you see this difference on the eve of the first Khmer Rouge trial?  

Throughout the 1990s, the most basic distinction in both the customary and codified laws of war-the distinction between soldiers and civilians-all but disappeared in places like Sarajevo, Kigali, Dili and Freetown.  Instead of Apache helicopters and the decisive use of force, the United Nations promised the victims "justice" in the form of war crimes trials.  However, the application of that justice was selective, uneven, and absurdly expensive.  Perhaps there was a "new era of human rights" in places like New York City and Cambridge; however the decade will be better remembered for the West's feeble responses to genocidal civil wars that vied for its increasingly fragmented and unfocused attention.

You have written also that all war crimes tribunals signify failure - a failure to act, or a failure to deter. How much do you think the legacies of failure are driving the Khmer Rouge trial process?

The Khmer Rouge war crimes tribunal is all about failure and three decades of cynicism. The 1970s saw King Sihanouk's dangerous and duplicitous dance of neutrality; the Lon Nol coup; the US secret bombing campaign; China's unflinching political, military, and economic support during the Khmer Rouge's genocidal reign.  During the 1980s, it got even more cynical, the atrocities were now clear for all to see, yet the US, China, Thailand, and UN continued to prop up the Khmer Rouge in the name of geo politics.  When the UN finally occupied Cambodia during the 1990s, there was no mention of war crimes accountability and the Khmer Rouge was treated like a legitimate political party.  In the late 1990s, Hun Sen, using a deft combination of military force and diplomacy, broke the back of the KR.  At this point, the UN assumed a very sanctimonious attitude towards the war crimes court.  If nothing else, distrust between the Cambodians and UN was well established.  

In your view, should more defendants be indicted by the tribunal?

This court has not earned that right.  UN officials talking about more indictments is kind of like the executives at AIG or Citibank asking for new Gulfstream jets and end of the year bonuses.  The ECCC original budget was somewhere around $53 million, and the trials were supposed to take three years.  Today that budget has ballooned to $170 million and they now want five years.  This court has taken more time to indict a handful of geriatric Khmer Rouge leaders than it took to try every single (5000+) German and Japanese war criminal after WWII.  The case against Brother Duch is rock solid; not only has he confessed to his crimes, unlike the KR political leaders, there is solid body of irrefutable documentary evidence against him.  The Tuol Sleng records are as damning to Brother Duch as the Morning Reports were to the Einsatzgruppen leaders, the Einsatzgruppen case took Nuremberg prosecutor Ben Ferencz two days to present and led to fourteen death sentences (only four were carried out).  

How far can, and should, the government cast its net?

All of this talk about new indictments is premature.  Before anything else, the ECCC needs to prove that it can function as a legitimate court and that it is not a terminally corrupt arm of the Cambodian government.  If they cannot slam dunk this blood-stained butcher in a timely manner, they deserve neither money, nor international support.

The Khmer Rouge trial has been justified on the grounds that it will help reform the judiciary and provide "closure" for Cambodia. Are these realistic aims?

I am not a shrink and can't comment on "closure" as it is a psychiatric term, not a legal one. It is highly unlikely that this court can reform the Cambodian judiciary given the corruption that has already been uncovered. The problem with the ECCC is that the human rights industry has grossly oversold it.  Defense attorney Richard Rogers put it best when he said, "If people expect this tribunal to exorcise all their demons, then they're going to be disappointed."  War crimes trials, at best, can punish the guilty and exonerate the innocent.  During the 1990s, the therapeutic legalists argued that trials can teach historical lessons and provide vague and impossible to measure things "truth," "reconciliation," and "healing."  The idea that war crimes trials can "re-educate" societies is based upon the assumption that the Nuremberg trials transformed Nazis into law abiding democrats.  The fact is that neither assumption stands up to analysis.  However, people do not know this because the lines separating journalism, scholarship and advocacy grew extremely blurry during the 1990s.  Criticism of international law or Nuremberg, beyond the ritualistic complaints about ex post facto law and victor's justice was considered to be in bad taste in most academic circles and as a result, analysis of the trials rarely went deeper than Nuremberg prosecutor Robert Jackson's opening address.

  NOBODY WHO IS DIRECTLY INVOLVED WANTS THESE TRIALS TO END ANY TIME SOON.

What is your view on Gregory Stanton's comment that "perfection is the enemy of justice"?  

I have great respect for Greg Stanton, he, Craig Etcheson, Steve Heder, Youk Chhang and a handful of others have kept the issue of Khmer Rouge war crimes accountability alive after nearly everyone else had given up.  However, there are baseline standards that a war crimes trial must meet in order to be credible and the Khmer Rouge tribunal has yet to meet these standards.  That is not to say that they can't or won't, but they have not tried a single case!  Despite my criticism, I am pleasantly surprised that this shotgun marriage tribunal has made it this far.  That said, they are running out of time and money and a Cambodian administered Truth and Reconciliation Committee might be a good plan B.  In their owns organic ways, Cambodian institutions like DC Cam and the Center for Social development, led by inspiring individuals like Youk Chhang and Chea Van Nath Youk, have led the way for Cambodians.  Cambodian institutions like these may have to step in if the UN and the Cambodian government fail.
It seems to me that the UN has now adopted similar attitudes in its approach to corruption in the court, but what are the limits of this logic?

It is no shock that one of the few issues where Cambodian and UN officials agree is that they need to keep a lid on the results of the UN's corruption inquiry.  Nobody who is directly involved wants these trials to end anytime soon, UN war crimes trials are the best paydays many in the human rights industry will ever see.  Today the annual budget of the ICTY runs over $300,000,000.  However, these expensive, open ended war crimes trials are vestiges of a long bygone era.  While I support many war crimes trials, even this one, I do not support the kind of uncritical "glass half full" optimism that David Rieff best described as "the kind of rhetoric that gives hope a bad name."

Has the court been successful in balancing its legitimacy and relevance to an international audience with its legitimacy and relevance to a Cambodian one?  

Not especially, the recent Berkeley survey found that 85 percent of Cambodians had little or no knowledge of the Khmer Rouge tribunal.  This supports my informal findings that most Cambodians' greatest concern is filling the rice pot twice a day.  Many cannot understand why the aging genocidists who destroyed their country and killed their families are given the presumption of innocence and elaborate trials while moto taxi thiefs are often killed on the spot and the children of the elite, quite literally, get away with murder.  

Journalist John Pilger recently wrote that a just trial would also include the indictment of American officials responsible for the aerial bombing of the country during 1969-73. Do you agree?  

The question of who should be indicted is fast turning into an international legal version of "fantasy football". If we are going to include Henry Kissinger, we certainly can't leave out those Chinese leaders who were by far the Khmer Rouge's most generous and significant patrons. 

What is your view on the Responsibility to Protect and other interventionist doctrines formed in the immediate post-WWII period?

This an extremely subjective and slippery slope as demonstrated by the constantly "evolving" positions of humanitarian hawks like Michael Ignatieff, Sara Sewall, and Samantha Power who were left flat footed when the Bush administration high jacked their doctrine and applied a more messianic version to the war on terror.  After 9/11 Muslims became the infidels of the Neo Just War era.  In the cases of Sewall and Ignatieff, they simply got with the new program:  Ignatieff became an advocate for torture and American empire, while Sewall cheered the US invasion of Iraq, and helped to author a US counterinsurgency doctrine based partially on US policy in El Salvador during the 1980s.  Pulitzer Prize winner Samantha Power was quick to point out atrocities in Darfur, but conspicuously silent about American conduct in the war on terror.  It is no coincidence that today all are politicians or policy makers today - that is the reward for staying within the permissible boundaries of the debate.

How do you see the future of international war crimes trials?

International Criminal Courts with perfect legal mechanisms mean little without enforcement capabilities that extend to the major powers.  I don't see this changing anytime soon.  Maybe the Spanish Gonzalo Boye will prove me wrong, but I doubt it.

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