Sowing justice: Tribunal in Cambodia has lessons for Iraq
By Noah Leavitt
(FindLaw) -- On May 20, Cambodians marked the anniversary of the day in 1973 when the Khmer Rouge began their drive to remake Cambodian society by recalling family members and friends who were killed during this Maoist-inspired agrarian revolution.
On the same day but halfway around the world, recently discovered mass graves hinted at what the world will learn about Saddam's violent rule. Evidence like this makes all the more pressing an important question: What kind of tribunal should judge the crimes of Hussein and his henchmen?
Though the media has virtually ignored it, the "grandfather" of modern human rights tribunals is moving closer to becoming a reality. Two weeks ago, the United Nations General Assembly approved a process, more than five years in the making, for trying some of the members of the Khmer Rouge who devastated Cambodia in the 1970s.
At first, this sounds like good news. Yet respected groups such as Amnesty International and Human Rights Watch almost unanimously condemn the agreement. Strikingly, some organizations have even stated that they would prefer that it had failed altogether.
As I explain below, the truths of history and the dreams of justice have clashed in Cambodia. After twenty-five years, Cambodians may only be even further away from seeing their aging tormentors brought to accountability. And the U.S., troublingly, aided in developing this controversial and potentially ineffective model of international justice.
What lessons may be derived from Cambodia's experience to avoid repeating the same mistakes in Iraq?
The U.S. role in destabilizing Cambodia
In Cambodia, as many argue was the case in Iraq, the U.S. aided in creating the conditions that led to massive human rights violations.
In 1969, President Nixon, as part of his covert "madman" foreign policy strategy, ordered a secret worldwide nuclear alert to terrify the Soviets into forcing concessions in Southeast Asia. (At that time, nuclear warheads were the only weapons of mass destruction that could inspire a fear great enough to function as diplomatic leverage.) As part of the same strategy, he secretly began bombing Cambodia.
The thousands of sorties radically destabilized the small country. The ensuing chaos helped create the vulnerable conditions that Pol Pot's Khmer Rouge forces exploited to take power and impose their harsh rule.
The Khmer Rouge's reign
Between 1975 and 1979, close to two million Cambodians, out of a population of approximately seven million, died from execution, starvation, and disease. When the Vietnamese gained control of Cambodia in 1979, ending the Khmer Rouge's reign, they found countless skeletons scattered around the country's killing fields.
That brief period is considered to have given rise to one of the most devastating human rights horrors of the bloody 20th century. Accordingly, discussions about trying the Khmer Rouge leaders subsequently began around the world.
Such a tribunal could have been the first since those convened at Nuremberg and Tokyo. But it didn't happen that way. Instead, justice has been very slow in coming.
Since the idea of a court for Cambodia was first proposed, the world has seen international tribunals take shape for crimes in Yugoslavia and Rwanda, Sierra Leone, Kosovo and East Timor. We have also seen the rise of the International Criminal Court. Yet no Cambodia tribunal exists -- and as noted above, the agreement for one has come under heavy criticism from human rights groups. Why?
U.S. support for the Khmer Rouge and a ruined judiciary undermine tribunal hopes
After Vietnam's takeover of Cambodia, the United States and China led the way in recognizing the Khmer Rouge as Cambodia's legal government. Pol Pot's atrocities were by then known around the world. Yet the U.S. spearheaded a successful campaign to help the Khmer Rouge retain Cambodia's seat at the United Nations -- a chilling state of affairs that persisted until the early 1990s.
During the period from the mid-1970s to the present, Cambodia has become the test case for internationally supported nation-building. But like nearly every sector of Cambodian society, the court system is still recovering from the Khmer Rouge's destruction. As part of their effort to turn Cambodians into farmers, Pol Pot's army killed all educated Cambodians and destroyed an entire generation of teachers, doctors and lawyers.
Today, even in modern, post-Khmer Rouge Cambodia, the government virtually controls the judiciary, which fears issuing decisions against entrenched political interests. Several high-ranking judges have recently been assassinated. Meanwhile, Cambodia has held a low strategic and economic importance on the global stage -- meaning that its issues have been accorded low priority.
No wonder, then, that negotiations concerning a tribunal for Cambodia have dragged on for almost six years.
Choosing a tribunal for Cambodia: The conflict between the U.S. and the U.N.
Serious discussions finally began in 1997, when Cambodia's two co-prime ministers -- including the current head of state, Hun Sen -- requested the U.N.'s help in establishing a process to provide justice. The motives behind Sen's request were questionable, as he himself had roots in the murderous U.S.-backed Khmer Rouge regime.
In 1999, a number of models for tribunals were discussed. But a group of U.N. experts rejected both purely Cambodian models, and "mixed" models, in which local judges, and international or foreign judges, would compose a panel. The U.N. thought any Cambodian participation would be unwise, given the low level of competency within, and the high level of governmental control over, Cambodia's judiciary.
Instead, the expert panel, which included the U.S., supported the option of an international tribunal staffed by judges and prosecutors from outside Cambodia. Only non-Cambodian jurists, their choice suggested, would be immune to the entanglements and pressures facing domestic judges.
But later that year, the U.S. -- without consulting either the U.N. or Cambodian civil society -- reversed its position. Rather than supporting the prior option of an international tribunal, it now supported a mixed tribunal -- and, indeed, one that would feature a majority of Cambodian judges and co-prosecutors. The U.S. also recommended that the tribunal utilize a confusing and unwieldy "supermajority" formula for deciding cases.
From Hun Sen's perspective, this model must have seemed ideal: it would be based in his crippled and cowering domestic judiciary, rather than in an international body over which he would have less control. The chance that his ex-henchmen in the Khmer Rouge would be prosecuted would obviously be far slimmer.
Why did the U.S. undermine the previous tribunal proposal? Some have speculated it might have done so to protect its own leaders. Henry Kissinger, then- Secretary of State and architect of the bombing campaign, has been accused by some of committing crimes against humanity in Cambodia -- crimes that, if they occurred, an international tribunal would have been more likely to discover.
Whatever the reason, the U.S.'s reversal derailed the process for a time. Indeed, it prompted U.N. Secretary-General Kofi Annan to announce that he would discontinue the U.N.'s participation in this process entirely.
The system the U.S. had proposed, Annan argued, would fall far short of internationally agreed-upon standards of justice. For instance, although Cambodia had ratified the treaty creating the International Criminal Court, its own tribunals, under the U.S.'s proposal, would fall far short of the ICC's standard.
During the next two years, a coalition of U.N. members, led by the U.S., worked to overcome Annan's reluctance, to no avail. In early 2002, the U.N. announced that it was withdrawing from negotiations because it did not trust former Khmer Rouge associate Hun Sen.
Human rights groups, skeptical that the Cambodian government would ever give effect to an agreement, applauded the U.N.'s position. However, the story did not end there.
The U.S. model eventually prevails -- but still may not be implemented
In late 2002, France lobbied the U.N. to resume negations with Cambodia, and expressed its support for the U.S. model for a tribunal. Several meetings between the U.N.'s legal counsel and a Cambodian delegation followed. From these sessions emerged a draft agreement to establish a "mixed," Cambodia-dominated court very similar to what the U.S. had proposed several years earlier.
That model formed the core of the agreement recently approved by the U.N. General Assembly. Nevertheless, there is no guarantee that this controversial body will ever see the bright light of a Cambodian day.
The agreement cannot become binding law until ratified by the Cambodian legislature. With Cambodian national elections later this summer this is not necessarily a fait accompli.
If the legislature does ratify the agreement, though, might the Cambodians victimized by the Khmer Rouge find justice through a tribunal? Sadly, almost no one believes that would occur.
Meanwhile, Cambodia remains a destabilized and traumatized society, partly as a result of the U.S.'s conduct over the years. Twenty-five years have passed since the end of the violence in Southeast Asia. Yet the only tribunal the people of Cambodia may get is a U.S.-designed body that has been harshly criticized by almost every major human rights group in the world. Don't the Cambodians deserve more than that?
Comparisons with Iraq: The lesson of Cambodia's failed tribunal proposals
What might the history of Cambodia's faltering tribunal teach us about possible developments in Iraq?
Although Operation Iraqi Freedom just ended, the signs are already alarming. The U.S. has been floating a variety of plans for mixed tribunals. Several would feature U.S. military courts. Others would be overseen exclusively by Iraqi judges. No clear pattern has emerged among the proposals -- except for a strong resistance by the U.S. to any type of international panel.
Why does the U.S. oppose international tribunals? Perhaps, in part, for the same reason some thought it did in Cambodia: to protect its own.
In the past few weeks, a Belgian lawyer has brought charges of war crimes against General Tommy Franks, who led the coalition troops against Saddam. Charges like these would likely by aired in an international tribunal. In contrast, they might be given much shorter shrift in a tribunal run by pro-U.S. Iraqi judges.
More broadly, such judges would be susceptible to U.S. influence in the way an international tribunal would never be. Since global sentiment largely opposed the war (at least given the lack of U.N. backing) in the first place, the U.S. may well fear that, in other ways, an international tribunal might place blame on the U.S.
Did the U.S. fully comply with rules on avoiding civilian casualties, for instance? Doubtless, the U.S. would prefer not to have this issue openly debated in an inhospitable international forum.
Of course, the Iraqis -- on whose behalf the administration claimed it was conducting the war -- deserve justice for Saddam's atrocities. As with the Cambodians, whether they will get it is very much another question. History remains a battleground; our hope is that international tribunals can elevate it above the level of a killing field. So far, the signs as to whether this hope will be fulfilled in Iraq are not positive.
Noah Leavitt, a FindLaw columnist and attorney, has practiced human rights law in numerous international and domestic settings, and has traveled extensively in Cambodia. He can be contacted at firstname.lastname@example.org.