ARUSHA, TANZANIA-The road to try former Khmer Rouge in Cambodia for genocide has
been long, difficult and as yet unsuccessful. The one taken to prosecute similar
crimes committed in Rwanda in 1994 may have moved quicker, but the eight-year-old
court has remained highly controversial.
If Hun Sen decides that he wants a say in the indictments or sentencing, then this has the potential to make the 1979 Vietnamese show trial [of Pol Pot and Ieng Sary, both in absentia] look like Nuremberg, says war crimes researcher Peter Maguire.
For one, it has been exceedingly expensive. The Arusha-based tribunal, which was
created by a UN resolution in 1994 and is known formally as the International Criminal
Tribunal for Rwanda (ICTR), has cost around $1 billion to date.
Those costs are not coming down-the ICTR's operating budget for 2002-3 was set by
the UN at $178 million. (Contrast that with the total estimated cost of the proposed
Cambodian tribunal of between $15 million and $50 million.)
But criticisms of the ICTR don't end with its gigantic expense. The tribunal has
been accused of being corrupt, slow (to date it has sentenced just 12 suspects and
acquitted one), inefficient and staffed with incompetent employees. It remains true
that among the few to sing its praises are those paid to do so.
It has also drawn stinging criticism from the Rwandan government and many Rwandans,
on whose behalf it was ostensibly established. That country's chief prosecutor told
the BBC earlier this year that the ICTR still suffers from "fundamental problems
such as bad management, severe corruption, problems relating to the abuse of the
procedure by the defendants and their defense lawyers".
He said part of the problem was that many of those working at the ICTR have a vested
interest in dragging out proceedings for as long as possible, given that their jobs
depend on its existence. He described the tribunal as having achieved only "modest
success".
The prosecutor's scathing comments followed earlier accusations from the Rwandan
government that the ICTR was working too slowly and had failed to protect witnesses
testifying against the accused.
Tribunal posters on a wall of the Arusha Conference Center.
Lessons to learn
For its part, the ICTR-which will probably not finish its work until 2010-acknowledges
past problems, but maintains that the body is growing ever more efficient. That is
a hard sell, but there are certainly lessons to learn from the billion-dollar tribunal
that can be applied to the proposed Khmer Rouge tribunal known as the Extraordinary
Chambers.
Just what these lessons can teach depends very much upon whom you talk to. The ICTR's
former president, Judge Navanethem Pillay, addressed some of those in her final annual
report to the UN Security Council in October 2002.
Pillay told the body that, for example, conducting multiple trials-in which a panel
of judges hears several cases concurrently-had slowed proceedings and delayed the
handing down of justice.
She said another problem concerned the actions of defense lawyers, some of whom were
in the habit of filing "frivolous motions" (to drag out proceedings and
maximize their pay). Pillay said the judges had found ways to restrict such time-wasting
tactics.
So has the tribunal forged ahead with new speed? Not so you'd notice, Pillay admitted:
"Despite the best efforts of the judges and all support sections, trials continue
to be drawn out and often defy the best-laid plans."
And, she conceded, the fact that some 30 suspects were still in detention awaiting
trial was "a grave concern and does not bode well for the interests of justice".
That was a year ago. Yet today, more than four years after some suspects were transferred
to Arusha, they are still awaiting trial.
In the Arusha media center. The media itself is seen as part of the problem in Arusha: The Eurocentric attitude of the world's major media groups, combined with journalists' preference for the comforts of Europe (to the perceived hardship of a Tanzania posting), mean it has been neglected.
Echoing more points in Pillay's briefing to the Security Council, an ICTR official
in Arusha told the Post on October 9 of other significant issues. Among these were
problems with language, and the lack of infrastructure that greeted the tribunal
on its arrival.
The official, who did not want to be named, said initial facilities were so woeful
that the first indictment was tapped out on a typewriter in a hotel room. The UN
had to outfit the courts and offices, as well as build a detention center to meet
international standards.
And there were several other reasons to explain the slow pace: First, the cases are
invariably complex; second they rely on testimony from witnesses, most of whom are
from neighboring Rwanda. Third, the tribunal's judicial system is divided between
common law and civil law, which employ different procedures.
Fourth, many witnesses testified in Kinyarwanda, the language of Rwanda, and not
the official languages of the court, which are French and English. The ICTR had to
employ and train some 20 interpreters and translators, and finally switched to using
simultaneous translation to speed up proceedings.
But, he claimed, these days the ICTR runs far better. He said the tribunal's poor
image stemmed mainly from the early days, when it was plagued by a lack of infrastructure.
And given that the media has barely followed the tribunal since then, he pointed
out, its reputation has remained tarnished.
Cambodian scenario
But will these problems plague the proposed Khmer Rouge tribunal? For the most part,
yes, say some observers. Genocide researcher Craig Etcheson said one of the few areas
where the Khmer Rouge tribunal will be noticeably better off is that most potential
witnesses are already in the country.
"For example, Khmer will be an official language of the court, along with English
and French, which will necessitate a withering maze of simultaneous translation and
vast amounts of document translation," Etcheson explained. And, he added, if
Russian is also included-something Phnom Penh wanted from the beginning-"then
that will add yet another layer of linguistic complications".
But the UN feels it can avoid much of what went wrong at Arusha. Ralph Zacklin, the
UN's assistant secretary-general for legal affairs, said people should keep in mind
a key difference between the ICTR and the proposed Cambodia tribunal-that the former
is a subsidiary organ of the UN Security Council whereas the latter is not. Instead
the proposed Khmer Rouge courts will be "national, Cambodian institutions, functioning
within the existing national judicial system of Cambodia".
Zacklin said that has important implications for the court's efficiency. While the
ICTR had to develop a new code of criminal procedure, the proposed Khmer Rouge tribunal
has "a ready-made code of criminal procedure that will apply". (Where there
are gaps in the Cambodian code, the court will follow international precedents.)
And perhaps in anticipation of Arusha-style criticisms, the UN is keen to point out
precisely what does and does not fall into its remit.
For example, said Zacklin, the agreement between Phnom Penh and the UN makes clear
that it is the government's responsibility to provide and pay for the tribunal's
premises. Infrastructure costs for the UN should run only to "minor improvements",
he told the Post by email.
As for the witness protection program-a major expense in Arusha-Zacklin said the
court's responsibility would be to conduct proceedings "in such a way as to
ensure that witnesses are protected".
However, once witnesses left the courtroom, the Cambodian government would be responsible
for ensuring that those who needed protection actually received it.
Zacklin said that one important lesson learned from the ICTR and the Yugoslavia tribunal
(known as the ICTY) was the lack of experience some judges had in conducting criminal
trials. (Judges at these tribunals were elected by member states at the UN from a
list of candidates proposed by other states, causing some critics to accuse the UN
of pandering to tokenism.)
He said in Cambodia's case, the country's Supreme Council of Magistracy would appoint
the international judges, prosecutor and investigators from a list supplied by UN
Secretary-General Kofi Annan.
"In advising the Secretary-General, [the UN's Office of Legal Affairs] will
make every effort to ensure that the list of nominees features a sufficient number
of individuals with extensive experience in the conduct of criminal trials (on the
bench, in the case of judges; as prosecutors, in the case of the international co-prosecutor),"
Zacklin said.
Other views
The ICTR is not short of critics, one of whom is war crimes author and researcher
Peter Maguire. He doesn't reserve his anger for the tribunal-he says its conduct
is symptomatic of the double standards that apply to the international community's
prosecution of such crimes.
In terms of lessons learned, Maguire feels language and infrastructure need not prove
problematic at the proposed Khmer Rouge tribunal. He says these are "smaller
technical problems" that can be overcome, provided there is enough political
will and international support.
And the very fact that such excuses are used by the ICTR to explain its poor performance
goes to the heart of Arusha's problems.
"If the Rwanda trials prove one thing, it is that fairness and legitimacy cannot
be bought," Maguire told the Post by email. "That trial has been a debacle
since the beginning. The main reason to me was that the UN's first team was much
less interested in these far away trials."
He said that had contributed to the alienation felt by most Rwandans for the Arusha
tribunal. The gacaca hearings now being used by Rwanda-traditional courts that were
revived to deal with the 100,000 people jailed after the genocide-had proven far
more relevant to its people.
Maguire added that the West's different military responses to the civil wars in Kosovo
and Sierra Leone showed where its priorities lie.
"John Leigh, Sierra Leone's ambassador to the US, put it best during the time
of the Kosovo invasion. Leigh said: 'Here is a white nation getting all these goodies,
and here is Sierra Leone, where they are cutting off the arms of women and children,
and they are not paying any attention'.
"And consider the attention paid by the world's press to small-fish defendants
like Duso Tadic at the ICTY in the Hague, while the Arusha court was trying much
more significant former leaders, yet they still could not get much attention,"
Maguire said.
And, he added, the media itself was part of the problem in Arusha: The Eurocentric
attitude of the world's major media groups combined with journalists' preference
for the comforts of Europe (to the perceived hardship of a Tanzania posting) mean
it has been neglected.
One elite journalist proved "more honest than most" when he told Maguire
that none of the press wanted to go to Arusha in the first place. In short, Maguire
feels there is a risk, albeit slight, that the same could happen with Cambodia.
But, Maguire added, Arusha-style problems are a lesser concern-the biggest potential
problem with the proposed Khmer Rouge tribunal is likely to be a lack of political
will and the potential for political interference by the Cambodian government (although
he acknowledges that such interference is an inherent risk in any trial of this nature).
"If Hun Sen decides that he wants a say in the indictments or sentencing, then
this has the potential to make the 1979 Vietnamese show trial [of Pol Pot and Ieng
Sary, both in absentia] look like Nuremberg," he said.
Other critics feel the tribunal's make-up contains inherent flaws. American academic
Steve Heder feels the highly political negotiations between the UN and the Cambodian
government may have already compromised the tribunal's integrity.
In a recent Post article, Heder was quoted as saying that the proposed Khmer Rouge
tribunal may well be limited in its scope: It would probably not indict party secretaries-senior
Khmer Rouge cadre whom his research indicates bear much of the responsibility.
Heder said that prosecutors investigating the Khmer Rouge period should be able "to
follow the evidence wherever it leads, to people at whatever level".
"The criteria for prioritizing prosecutions should be the seriousness of the
crimes committed, not the official place in the hierarchy of the alleged perpetrator,"
Heder said. "[Although] formally the law allows this, the politico-diplomatic
deal that the UN was forced to accept effectively precludes it."
Fellow genocide researcher Etcheson said Heder's point also applies in a more specific,
prosecutorial way. At the ICTY, he said, prosecutors worked their way up the hierarchy-they
started with a brutal prison camp guard, then used that evidence to prosecute his
commander. That testimony could then be used to indict the regional military commander
and others higher up the chain of command.
"It is a standard prosecutorial approach to cracking large mafia-type criminal
organizations," he told the Post by email. "But the Extraordinary Chambers
is limited to indicting 'those most responsible for the most serious violations',
and so prosecutors there are probably not going to be able to use this classic technique
for demonstrating the command responsibility of top leaders."
Another aspect of major concern is the length of time it took to get the ICTR and
the ICTY off the ground-around two years for each, which Etcheson said was "a
worrying precedent".
"If it takes that long to get from the formal UN General Assembly adoption of
the KR tribunal agreement earlier this year to the actual convening of the court,
some of our aging prime suspects around here are not likely to survive the interim,"
Etcheson said.
And, he said, the comments by the ICTR's former president, Judge Pillay, about excessive
pre-trial detention are a further complication. The only two suspects detained to
date are former commander Ta Mok and Duch, the former head of the S-21 execution
center.
To keep both men in jail, Phnom Penh simply rewrote the country's law on the six-month
limit for pre-trial detention. It decided that in cases where suspects are accused
of genocide or crimes against humanity, they may be held for three years on each
charge.
"This is clearly a capricious and ex post facto use of the law," Etcheson
said. "I sometimes wonder whether once the Extraordinary Chambers are convened,
Mok's defense lawyer isn't going to file a motion arguing that his client's rights
have been so severely trampled that it is impossible for him to receive justice,
that the charges should be thrown out and he should be released-and that some of
the judges might agree with this argument."
Away from the legal aspect, Etcheson said the corruption and incompetence seen at
Arusha were also key issues to bear in mind.
"And add to that the outrageous expense ... that a billion dollars ... [has]
generated only a handful of convictions," he said. "And this is what some
critics of Cambodia's proposed tribunal are citing as the 'first-class model' when
they suggest the Cambodian court will represent 'second-class justice'!"
Finally, Etcheson said, there is the relationship between the "victim population"
and its government on one hand, and the court and its advocates on the other.
He says the well-publicized criticisms by the Rwandan authorities bore testimony
to that government's "barely concealed and sometimes baldly unconcealed contempt
for the efficiency, fairness and reasonableness of the international court allegedly
operating in the name of its people".
Etcheson feels that such disagreements could presage difficulties to come in the
Cambodian court, although as he points out, that assumes that any of the suspects
will be left alive by the time the wheels of international justice roll into Phnom
Penh.
Optimism
Criticisms aside, though, the ICTR has provided some useful 'firsts'. Among these,
it handed down the first conviction for genocide of a head of government when it
sentenced the former interim Prime Minister Jean Kambanda to life in jail for his
role in the events of 1994. It has also amassed a large body of case law that future
tribunals can draw upon.
Etcheson said the ICTR has provided some other important results. First, it set a
precedent in handing down a conviction for using rape as an illegal weapon of war.
Second, it has done a "creditable job" of ensuring many of those in the
Rwandan leadership were arrested and brought before the court (although he admits
that is unlikely to happen in Cambodia).
The UN's Zacklin said a major Rwandan criticism of the Arusha tribunal should at
least be avoided in the proposed Khmer Rouge trials and Cambodians would probably
benefit more from the tribunal than Rwandans had from Arusha.
"One of the Security Council's objectives in setting up the ICTR was to promote
national reconciliation within Rwanda. It is very hard for the ICTR to do this, though,
when it is located outside the country and its work is largely, if not entirely,
unknown to most ordinary Rwandans," Zacklin admitted. "The Extraordinary
Chambers, in contrast, will be set up and operate in Cambodia itself. It should be
much easier for the Cambodian people to see, hear or read about their proceedings."
For both the cheerleaders and the naysayers it is too early to tell whether the Khmer
Rouge tribunal will prove a success.
Maguire says that tribunal history hands down a lesson as old as the Nuremberg trials,
which were convened after the Second World War to try Nazis. The lesson is that all
such ventures come with an inherent risk-one that was recognized more than 40 years
ago by one of Germany's finest legal minds.
"Both critics and supporters of this trial would be wise to remember the words
of the great German legal theorist Otto Kirchheimer, who made the subtle and often
overlooked point that any trial 'presupposes an element of irreducible risk for those
involved'," Maguire said.
"Kirchheimer's most basic point about the very nature of political justice seems
to have been forgotten during the 1990s," Maguire concluded. "And his point
was this: 'Circumstantial and contradictory, the linkage of politics and justice
is characterized by both promise and blasphemy'."
* Robert Carmichael was the managing editor of the Post from August 2001 to August
2003. He is currently traveling in eastern and southern Africa.
Genocide in Rwanda
* Began in April 1994 and lasted 100 days.
* An estimated 800,000 people, mainly Tutsis and moderate Hutus, murdered.
* Tribunal is prosecuting "for genocide and other serious violations of international
law"
committed by any nation's citizens in Rwanda between January 1, 1994 and December
31,
1994, or committed in neighboring states by Rwandan citizens in that period.
* Around 80 suspects indicted; 12 convicted; one acquitted.
* 20 detainees currently on trial; 30 awaiting trial; 16 indicted but not yet arrested.
* The ICTR passed the world's first conviction for genocide on a head of government:
Rwanda's former interim prime minister Jean Kambanda, who was sentenced to life
in jail.
Genocide in Rwanda
* At least 1.7 million people are believed to have died under the Khmer Rouge government,
known formally as Democratic Kampuchea. Some scholars believe the real number
could be
twice that.
* According to the deal signed between the government and the UN, the tribunal will
try "senior
leaders of Democratic Kampuchea and those who were most responsible for the crimes
and
serious violations of Cambodian penal law, international humanitarian law and
custom, and
international conventions recognized by Cambodia, that were committed during the
period
from 17 April 1975 to 6 January 1979".
* The government has indicated that provision would apply only to the ten or so most
senior
surviving leaders.
* Political obstinacy on both sides has characterized the slow progress towards an
agreement,
which was finally signed in March 2003, and approved by the UN General Assembly
in May.
* Cambodia's National Assembly still needs to ratify the deal with the UN to establish
the
tribunal. That is expected to be a formality.
