Global Policy Forum

By Robert Carmichael *

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. 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.

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. 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'."

* 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 Cambodia

* 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.

About the Author: Robert Carmichael was the managing editor of the Post from August 2001 to August 2003. He is currently traveling in eastern and southern Africa.

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