WSU International Law Series Politics dictate justice at Cambodia Tribunal Professor: 'The government doesn't want too many questions asked'

By John Minnis

Legal News

Even genocide takes a back seat to the "politics of politics," particularly in Cambodia where efforts to bring Khmer Rouge war criminals to justice remains unfinished.

Such were the sentiments expressed by Cambodia experts Peter Hammer and John Ciorciari at a Winter 2010 Speaker Series luncheon topic, "The Special Tribunal for Cambodia and the Future of International Criminal Law," sponsored Wednesday, Jan. 27, by the Program for International Legal Studies at Wayne State University Law School.

"We're lucky to have two experts on Cambodian law and politics," professor Greg Fox, director of the International Legal Studies program, told the law students and faculty present. "International criminal law is a new area. International law has been mostly state-centric. International criminal law impales the curtain of state sovereignty. Heads of state can be charged criminally."

An international law professor at Wayne, Fox outlined the history of war crimes prosecutions, beginning with the Nuremburg Trials. Post World War II war crimes courts and tribunals have included that of former Yugoslav President Slobodan Milosevic, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the "Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea," commonly known as the Cambodia Tribunal.

Unlike previous war crimes prosecutions that were led by international courts with local assistance, the Cambodia Tribunal is primarily a domestic body with international assistance. As professor Ciorciari later pointed out, the Cambodian pre-trial, trial and appeals chambers are all weighted in favor of Cambodian judges, who hold majorities in all three courts.

Fox said war crimes courts face three questions: 1) whether to prosecute or do nothing, 2) whether the venue should be in the affected country or internationally, such as The Hague, and 3) who should be prosecuted, everybody or just the leaders.

Hammer teaches health law and policy at Wayne State Law School and is author of the chapter, "The Elusive Face of Cambodian Justice," in "Awaiting Justice: Essays on Accountability in Cambodia" (Beth Van Shaack, editor).

"In studying the history of genocide," he said, "we must not forget these are real people, real faces. Their memories haunt people for life. Cambodia is and was a big deal."

He compared genocide at the hands of Nazis with that of the Khmer Rouge in Cambodia.

"Body counts are not the objective," he said. "After World War II, Cambodia was the next big activity. After World War II, genocide continued. The issue is how we deal with it."

Hammer explained that the roots of the Khmer Rouge and the Cambodian genocide go back to the Vietnam War -- or the "American War," as it is known in Cambodia.

Cambodia gained independence from France on 1953 and became a constitutional monarchy under King Norodom Sihanouk. As the Vietnam War progressed, Sihanouk adopted an official policy of neutrality in the Cold War. However, while on a trip abroad in 1970, he was ousted by a U.S.-backed military coup. Fleeing to Beijing, Sihanouk aligned himself with communist China and urged his followers to follow Khmer Rouge communist rebels to overthrow the pro-U.S government in Cambodia.

Between 1969 and 1973, bombing by U.S. and South Vietnamese forces killed thousands of Cambodians, created 2 million refugees and aided Khmer Rouge recruitment. By the end of the war in 1975, Cambodia was destroyed and its people faced famine and starvation. The Khmer Rouge, the Cambodian Communist Party, filled the leadership vacuum.

The Khmer Rouge then set about to transform the country into an agrarian-based, communist society. City dwellers were forced to move to communal farms that were in fact labor camps. Intellectuals, including anyone who wore glasses, and business owners were executed. Fearing parents were contaminated by capitalism, children were separated from their families. Frequent purges within the party claimed tens of thousands of lives.

After four years of rule, the Khmer Rouge regime was removed in 1979 by an invasion by the Socialist Republic of Vietnam and was replaced by moderate, pro-Vietnamese communists.

The Khmer Rouge is known today mainly for the deaths of an estimated 1.5 million people, one-fifth of the country's total population. It survived into the 1990s, and despite its atrocities, the Khmer Rouge held its U.N. seat until 1993 with frequent backing by Western powers, including the United States.

"The years 1975 to 1979 are the most bizarre years in any nation's politics," Hammer said.

In 1997, Cambodia established a Khmer Rouge Trial Task Force to try leaders for war crimes and other crimes against humanity. Nine years later, 30 Cambodian and U.N. judges were selected to preside over the trials of surviving Khmer Rouge leaders.

"The real story in Cambodia, is how long we have failed to do that," Hammer said concerning bringing the perpetrators to justice. "(And yet,) it's remarkable how much we've accomplished."

That being said, he is "skeptical" of justice being done in Cambodia.

Fellow speaker Ciorciari is an assistant professor at the Gerald R. Ford School of Public Policy at the University of Michigan and co-editor with Anne Heindel of the volume, "On Trial: The Khmer Rouge Accountability Process."

Noting that Cambodian judges have the majority on the tribunal, Ciorciari said, "I very much agree with (professor Hammer's) description that the Cambodian government won the negotiations. The Cambodia Tribunal is unique in that it is built into the Cambodian legal system with international participation" -- just the opposite of the war crimes courts set up for Rwanda and Sierra Leone.

Ciorciari indicated that there are a lot of people who would just as soon the Cambodia Tribunal not be too aggressive.

"It is to shield U.S. participation in the crisis as well as the Cambodian government," he said. "Today's leaders have a lot of skeletons in their closets.

"The government doesn't want too many questions asked. The United States doesn't want too many questions asked. The Chinese don't want too many questions asked. I could go on and on."

From the original 20 to 30 possible defendants, the number is now down to five. One alleged war criminal died before facing any charges.

"When you are holding trials 30 to 40 years after the fact," Ciorciari said, "you reduce the number of subjects who did it."

Citing the several nations and languages involved, as well as two legal regimes, the professor called the Cambodia Tribunal a Tower of Babel.

Another hindrance to effective prosecution is the amount of corruption in Cambodia.

"Right from the get go," Ciorciari said, "corruption investigations have been the most hindered."

Even U.N. officials have been accused of corruption.

"I want to be fair," Ciorciari said. "It is not just the Cambodian officials at fault here. It is largely due to the huge influx of money to support the tribunal -- five defendants and $150 million, not a good deal."

On the legal side, the tribunal judges' deliberations have been on target.

"Their decisions are not dramatically different than what one would expect from international courts in The Hague," Ciorciari said.

He cited a Berkeley study that found the Cambodian public resoundingly supportive of the tribunal. But, Ciorciari wondered, who benefits more: the Cambodian victims seeking closure and healing or the international community seeking justice?

Both Ciorciari and Hammer were skeptical that Western influence will make a lasting impact on the Cambodian law.

"It's not going to revolutionize the Cambodian judicial system," Ciorciari said.

Published: Tue, Feb 9, 2010