By Sebastian Strangio

Published by Asia Times Online, August 17, 2010

Motiur Rahman Nizami is among the accused.

DHAKA – A SPECIAL tribunal in Bangladesh has indicted four members of the country’s main Islamist party, Jamaat-e-Islami, on suspicion of committing mass atrocities during the country’s 1971 Liberation War. Those arrested, including party president Motiur Rahman Nizami and his deputy Ali Ahsan Mohammad Mujahid, have been remanded in custody indefinitely and are likely to face charges of genocide, murder, rape and arson. Travel bans have been imposed on a few dozen more suspects.

The indictments, issued late last month, were the opening act of Bangladesh’s International Crimes Tribunal, established in March, which is seeking to prosecute those responsible for atrocities during the bloody war that resulted in the country’s birth.

The 1971 conflagration, which erupted when the Pakistani military attempted to prevent the secession of the country’s eastern wing, led to the widespread massacre of unarmed civilians and the systematic execution of leading Bengali intellectuals. Some sources say 3 million people perished during the 10-month conflict, while as many as 200,000 women were raped.

Although attempts at justice began after the defeat of the Pakistani army by Indian and Bangladeshi forces in December 1971, the tribunal process was derailed after the assassination of independence icon Sheik Mujibur Rahman four years later. For the following three decades, a succession of military administrations has swept aside all attempts at justice, fearing it could implicate many within their own ranks.

For Bangladesh, the trials come four decades late, and many of those most responsible are either dead or living in the relative sanctuary of Pakistan. But Mahbub Alam, the general manager of Dhaka’s Liberation War Museum, which commemorates the 1971 atrocities, said that there was a widespread desire to see justice done. “In this country, if you go into each and every village you will find war victims,” said Alam, who lost his father in the Liberation War. “The people who did all these kinds of misdeeds are the beneficiaries of the creation of Bangladesh,” he said. “They are the beneficiaries of the country, of three million martyrs.”

But the government’s focus on razakars — internal collaborators who led, assisted and committed crimes in conjunction with the Pakistani administration then in control of the country – has whipped up controversy in Muslim-majority Bangladesh. The Awami League government of Prime Minister Sheikh Hasina, which was elected in a landslide in 2008 in part on promises of a trial, says it has evidence proving the involvement of senior Jamaat members in the 1971 atrocities. Critics, however, say the tribunal is being used to settle domestic political disputes and runs the risk of unleashing social chaos.

Don Beachler, an associate professor of political science at New York’s Ithaca College, said the government has set up the tribunal in part to tar Jamaat-e-Islami as allies of the Pakistani army and “enemies of the Bangladeshi people”. The fact that Jamaat ruled in coalition with the Bangladeshi Nationalist Party – a key rival of the Awami League – from 2001 to 2006 has only provided an “extra motive” to pursue the Islamist movement, he added.

To be sure, Nizami and other Jamaat leaders clearly have reason to be concerned. Nizami founded and led the Badr militia, which committed numerous acts of violence against civilians in support of the Pakistani army’s campaign to repress Bengali nationalism. “Nizami was active against independence and advocated violence against Hindus who were seen as the source of Bangladeshis’ alleged betrayal of Pakistan and Islam,” he said. “On the merits and the politics Nizami has much to fear.”

Given the politically charged nature of the process, however, the relatively open-and-shut case against Nizami and his deputies could be compromised by procedural inadequacies and a perception of government heavy handedness. Some observers fear the arrests of Nizami and Ali Ahsan Mohammad Mujahid on June 29 were the first sign that the process was compromised by political manipulation.

The pair, along with top preacher Delwar Hossain Saydee, were detained on the obscure charge of “offending religious sentiment” after they compared their persecution by the Awami League government to the sufferings of the Prophet Mohammed. Only once they were in custody did the government move ahead with questioning on war crimes-related charges.

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By May Titthara & Sebastian Strangio

Published in the Phnom Penh Post, July 27, 2010

KAMPONG THOM PROVINCE–IN the cafes of Stoung district, yesterday’s verdict in the case of Kaing Guek Eev, alias Duch, proved a hard sell. At one cavernous establishment on National Road 6, a broadcast of the proceedings vied for attention with a cheaply made Chinese action film. As soon as the music swelled and the credits began to roll, the mostly young crowd thinned, leaving a handful of elderly patrons to watch the Khmer Rouge tribunal on a second small screen in the back. And by the time the wiry Tuol Sleng commandant stood to attention and the verdict was read out, the room was empty save for two waitresses, who ferried away empty plates and glasses.

Interest was greater, though, in nearby Chaoyot village, especially among those who knew the prison chief when he was a schoolboy. Although most village elders did not watch the verdict – choosing instead to attend ceremonies marking Buddhist lent at Svay Romeat pagoda, where Duch studied as a child – the outcome provoked spirited discussion. Among one group of old women, dressed in flowing black gowns and white blouses, reactions to the verdict ranged from cold anger to forgiveness to pity for the convicted jailer.

Hi Hor, 72, who has lived in Duch’s village since she was born, said she was livid at the length of the sentence, which she said did not match the crimes he committed. “I will kill him and eat his meat if I meet him,” she said as she sat on a woven mat in the pagoda’s flag-draped dining hall. “The court should have sentenced him to his whole life in prison.”

At Kdey Doeum pagoda, located close to Chaoyot, village elders also gathered to mark the three-month lenten period, sitting on the floor of a half-constructed dining hall on the temple grounds. Pich Doeun, a 73-year-old layman, described his own experience under Democratic Kampuchea, when he was sent to a remote part of Stoung district to toil in communal rice paddies and construct irrigation dams. When asked if the verdict against Duch was fair, Pich Doeun expressed ambivalence. On one hand, 30 years was a just sentence, he said, but part of him wanted to see Duch executed and cremated, his bones placed in a stupa and never again removed. “I survived until today because of fate,” he said. “From my point of view, the court should kill him and bring his bones back and lock them up.”

Others, however, were able to separate their anger with the Khmer Rouge from their positive memories of the young Duch. “Even though I was tortured and did not get enough food to eat during that time, I pardon him. Everything passed over 30 years ago,” said 71-year-old Chhum Oeun, sitting at Svay Romeat pagoda.

Despite the evidence presented against him at trial, she said she would always remember Duch as “good and intelligent”, not the cruel ideologue convicted of overseeing the deaths of as many as 16,000 people at Tuol Sleng. Some of Duch’s relatives, too, said they did not view Duch as a monster, and condemned the court for a sentence they said was too strict. “I really pity my nephew,” said one 71-year-old who claimed to be Duch’s aunt, and who gave her name only as Tob. “The court should have charged him for a shorter time because he is too old, and let him live together with his family in his old age. “I don’t know what happened to him to make him become a Khmer Rouge during that time because his parents were good people,” she added.

A few hundred metres down the muddy village road, Brak Chlam, 67, one of Duch’s cousins, said he hoped to see the prison chief again. “I don’t care about the court charging him. What I care about is his life – I want to see him survive,” he said. Brak Chlam said he planned to visit Duch in prison if he could find the money. “I always see his face on TV. I want to see his real face,” he said. “I was so happy when I got news that he survived, because I wanted him to survive. I don’t know what he did in Phnom Penh. I only know that he was a good and intelligent boy.”

While the verdict divided opinion among those old enough to have detailed memories of the regime, younger observers seemed more or less indifferent to the verdict handed down yesterday. At another roadside cafe, the patrons were focused instead on playing chequers and watching kickboxing. Meas Rith, 41, who sat among a group of men watching the fight, said he had not been following the tribunal closely, but that he did not think it fair that Duch could potentially die in prison.

“The court should have sentenced him to about 10 years to give him some chance to spend time in the pagoda in his old age,” he said, before turning his attention back to the television. A cry went up as the two combatants pummelled each other onscreen.

“The people in the rural areas are not as interested about what has happened in the past as people in the city,” said Chai Lign, the owner of the café. The sinewy 29-year-old said he had heard of Duch but knew little of life under the Khmer Rouge, and that many his age were the same way. “They don’t want to know about the pain,” he said. “Some people don’t even know Duch’s face, what he looks like.”

By Sebastian Strangio & May Titthara

Published in the Phnom Penh Post, July 26, 2010

KAMPONG THOM PROVINCE–THESE days, life in Chaoyot village, a collection of stilt houses nestled along the banks of the Stoung river, proceeds in much the same way it did 68 years ago, when Kaing Guek Eav, alias Duch, was born to parents of Khmer-Chinese extraction. It was here, in a small concrete home shaded by bamboo groves and mango trees, that Duch spent his childhood years, cycling each day the short distance to the local primary school.

The rustling palms and rutted village track are worlds away from Tuol Sleng, or S-21, the secret Khmer Rouge facility that Duch moulded into an efficient machine of interrogation, torture and death. As head of the prison, Duch is thought to have overseen the torture and killing of as many as 16,000 people, creating a nihilistic whirlwind from which only 14 or so emerged alive.

Kong Suon, 85, the oldest resident of Chaoyot village, was enraged when Kaing Guek Eav, alias Duch, asked to be set free. (Photo: Sebastian Strangio)

As the Khmer Rouge tribunal prepares to deliver its verdict against the 68-year old today – perhaps the only one it will ever issue – the proceedings have not gone unnoticed in Chaoyot. But the desire to see justice served means different things to different residents; whereas some are unsure how to relate Duch’s crimes to the abuses they personally endured during the regime, others seem to feel their effects acutely.

More than six decades since his birth, Duch has left only a faint trace in Chaoyot. His neat family home, currently occupied by his nephew Kim Luon, still stands, surrounded by a well-tended yard that abuts the road. Dy Thy, 63, one of Duch’s old neighbours, said she heard nothing from him during the 1975-1979 rule of the Khmer Rouge, and that she found it hard to square the quiet young student she remembers with the horrors of Tuol Sleng.

“I supposed that the Khmer Rouge were people from abroad,” she said. “I didn’t know they were Cambodian people – especially not a person born in this village.”

An exceptional student

Duch lived in Chaoyot until about the age of 14. Residents recall that from his earliest years, the boy who went by the nickname “Kiev” stood out as an exceptional student. Sem Thuon, now 69, regularly shared a table with Duch at Wat Svay Romeat primary school between the first and third grades. “I always copied from him during the exams, and he allowed me to copy,” she said. “I never thought that he would become a strong Khmer Rouge leader.”

In many ways, however, Duch’s intellectual journey epitomised that of the Cambodian communist movement. Like other regime leaders, he was a beneficiary of the sweeping educational reforms Prince Norodom Sihanouk introduced in the late 1950s. Intended to modernise the country and expand opportunities in the countryside, the reforms instead created a class of educated but underemployed young men and women who helped pry apart the country’s centuries-old system of patronage. As the 1960s wore on, Sihanouk – the God-King himself – came under stronger attack from the growing ranks of the left.

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Int’l, national sides disagree on timing of future investigations

By Sebastian Strangio

Published in the Phnom Penh Post, June 10, 2010

THE Khmer Rouge tribunal has released letters documenting a disagreement concerning the timing of investigations into five additional regime suspects, continuing a long-standing pattern of disputes between Cambodian and international officials over the issue. Documents made public Wednesday showed that Cambodian co-investigating judge You Bunleng reversed an earlier agreement with his international counterpart Marcel Lemonde to open investigations into the five unnamed suspects. “For the sake of transparency, they have decided to make public the letters they exchanged recently on this issue,” the judges’ office said in a statement Wednesday.

In the first of the letters released by the court, dated June 2, Lemonde called on You Bunleng to sign a rogatory letter authorising preliminary investigations in Cases 003 and 004. He said that investigation teams were ready to be deployed “without delay”, and that if the order was not signed by June 4 he would conclude that the two disagreed on the issue, “with all the negative consequences this might entail”. “I hope we can avoid reaching this point,” he added. In a response dated June 8, You Bunleng stated that he initially signed the order Friday, but then reversed his decision, saying the issue should be considered in September after the closing order for Case 002 – the “core” of the tribunal’s mandate – is finalised. He said his decision was based on his consideration of the court’s purpose and the “current state of Cambodian society”.

UN court spokesman Lars Olsen said Lemonde will pursue the investigations on his own, pursuant to court rules. He added that investigators will not yet focus on specific individuals, but rather try to establish “whether or not crimes described in the submissions from the prosecutors took place at certain locations”. “The results from this part of the investigation will form some of the basis for the decision of whether or not to start investigations against individuals” at a later date, he said. Despite disagreement on the timing of the new investigations, Lemonde and You Bunleng are still working closely together on Case 002, which will provide a “good basis for future cooperation”, Olsen said.

The disagreement is consistent with an apparent pattern of government reluctance to prosecute any former regime leaders beyond those five already indicted by the court. In September 2009, the court’s acting international co-prosecutor William Smith announced he had filed submissions for investigations into five additional, unnamed regime suspects, overriding the objections of national co-prosecutor Chea Leang, who had argued that additional prosecutions could prompt ex-Khmer Rouge cadres and their allies to “commit violent acts”. After the announcement, Prime Minister Hun Sen echoed this warning in a speech, saying, “If you want a tribunal, but you don’t want to consider peace and reconciliation and war breaks out again, killing 200,000 or 300,000 people, who will be responsible?”

Anne Heindel, a legal adviser for the Documentation Centre of Cambodia, said the rift echoed earlier disagreements, but said that such disputes are to be expected in a tribunal combining local and international officials. She expressed concern about delays that might result, but added that it is not feasible to wait for the conclusion of Case 002 before the third and fourth cases move ahead. “If they don’t get started on Cases 003 and 004 while they’re still on Case 002, there’s probably going to be donor fatigue and unwillingness,” Heindel said. The fact that You Bunleng signed the letter before reconsidering showed “some willingness on his part to consider a third and fourth investigation”, she added.

Under the tribunal’s internal rules, either investigating judge may bring the disagreement before the Pre-Trial Chamber within 30 days. The rules also hold that while the dispute-resolution process is in motion, “the subject of the disagreement shall be executed”. Only in the case of arrests, it adds, does there need to be full consensus between the two judges.

You Bunleng could not be reached for comment.

By Sebastian Strangio

Published in the Phnom Penh Post, August 12, 2009

GOVERNMENT officials have hailed the outcome of the trial of Myanmar democracy icon Aung San Suu Kyi, claiming the reduction of her sentence was a “good sign” the country was moving in a democratic direction. On Tuesday, a court at Yangon’s notorious Insein Prison found Suu Kyi guilty of breaching her house arrest and sentenced her to three years’ jail and hard labour, a punishment the head of the ruling junta commuted to 18 months’ house arrest.

Koy Kuong, spokesman for the Ministry of Foreign Affairs, said the commuting of the sentence by Myanmar head of state Than Shwe showed Myanmar’s military government was keen to enact democratic reforms. “It is a good signal for the situation that Aung San Suu Kyi only got a sentence of 18 months’ house arrest,” he said. “Myanmar has gone through many steps [and] is on the way to democratisation.”

Koy Kuong did not wish to comment further on the trial on Tuesday, saying it was Myanmar’s “internal affair” and had been handled in accordance with the country’s laws. Koy Kuong’s comments mark a conspicuous U-turn in the government’s position on the issue, which previously held that Suu Kyi was innocent of the charges against her and should be released.

The 64-year-old Nobel laureate was arrested on May 3 following a bizarre incident in which an American man swam to her lakeside home in Yangon, which authorities claimed was a breach of the terms of her house arrest. “[We hope] Mrs Suu Kyi will be found innocent of these accusations and that she will not receive any additional punishment, because she has been punished already,” he told the Post on May 18.

Ou Virak, president of the Cambodian Centre of Human Rights, said that the government reversal was likely due to its awareness that the Suu Kyi trial “ran parallel” to the current situation in Cambodia – in particular, the recent spate of defamation and disinformation lawsuits filed against government critics. “It’s very difficult for the Cambodian government to say anything about [Suu Kyi’s trial] because the same could be said about the Cambodian government,” he said. “The Foreign Ministry must be careful not to have its arguments reflect back on Cambodia.” “At the end of the day”, he added, “it is beneficial for the people in power to see the status quo [upheld].”

The government’s response has also flown in the face of local opinion on the verdict. Soe Thiha, the leader of a group of Myanmar activists living in Phnom Penh, condemned the verdict, saying it was a clear attempt to keep Suu Kyi out of sight during elections scheduled for 2010. “I was optimistic [about] the outcome but I think that the military are very afraid of her,” he said. “They were desperate to keep her under control for next year.” Sam Rainsy Party spokesman Yim Sovann agreed, saying Suu Kyi had done “nothing wrong” and had been targeted out of fear. He called on the junta to bring its behaviour into line with the “democratic trends” sweeping the world.

The verdict against Suu Kyi, who has spent 13 of the last 19 years in detention since the junta refused to recognise her National League for Democracy’s landslide victory in elections in 1990, has also drawn a spate of criticism from the international community.

British Prime Minister Gordon Brown said he was “saddened and angry” at the verdict in the “sham trial”, and called for the United Nations Security Council to impose a worldwide embargo on the sale of arms to the Myanmar junta. French President Nicolas Sarkozy said new sanctions had to hit the junta where it hurt, especially in the trade of wood and rubies. Australia also called for tougher sanctions, expressing dismay at the “spurious” conviction. In a statement released Tuesday, the EU presidency vowed to impose additional sanctions against the military regime.

“The EU will respond with additional targeted measures against those responsible for the verdict,” the presidency said in a statement on behalf of the 27-nation bloc. “The EU will further reinforce its restrictive measures targeting the regime of Burma/Myanmar, including its economic interests.” WITH AFP

Observers say the recent legal offensive against government critics raises questions about how far Cambodia has come on the road to democracy — and how far the nation has yet to go

By Sebastian Strangio & Sam Rith

Published in the Phnom Penh Post, June 26, 2009

THE National Assembly’s decision to strip two opposition lawmakers of their parliamentary immunity on Monday has soured views on the status of democratic reform in Cambodia, with local and international observers saying the gap between the letter of the law and the country’s daily reality remains substantial.

On paper, Cambodia has relatively progressive laws: The Kingdom’s Constitution guarantees the independence of the judiciary, and other key pieces of legislation, including the 2001 Land Law, largely conform to international standards. But with eight separate lawsuits filed against government critics in recent months, including one against Sam Rainsy Party lawmaker Mu Sochua after she filed a defamation complaint against Prime Minister Hun Sen, some claim that nearly two decades of NGO- and donor-led reforms have left the bedrock of Cambodian People’s Party power largely untouched.

“Things are going back to square one,” said Yeng Virak, executive director of the Community Legal Education Centre, a local legal aid group. Yeng Virak drew a parallel to the 1980s, when he said a layer of “invisible law” held sway in Cambodia, informed by personal patronage and the selective application of formal law. In those days, he said, NGOs making legal arguments that ran counter to “invisible” prerogatives were quickly shut out. He said those charged with enforcing the law would “refuse to listen” and “ignore the law” altogether. “But the government is more sophisticated [now] – it is using the legal system,” he said.

An authoritarian pattern

According to overseas observers, Cambodia’s progress – from the outright violence of the inter-factional fighting of 1997 to the judicial intimidation of the present – is following a familiar path. “This is a common pattern, evident especially throughout Asia, where autocratic leaders first rely on means of physical violence until they manage to consolidate power within state institutions, particularly the judiciary,” said Sorpong Peou, a professor of political science at Sophia University in Tokyo.

Now that military threats have subsided, she said, the regime is relying on a quasi-legal framework to stifle dissenting voices – a similar path to that taken by Singapore under Prime Minister Lee Kuan Yew. But as in Singapore, the government’s response to international criticism is that foreign observers somehow do not understand “the realities” of the local culture.

Hun Sen’s warning to foreign observers not to “interfere” in the lifting of the parliamentary immunity of Mu Sochua and Ho Vann matched recent government criticism of international watchdog Global Witness and US Ambassador Carol Rodley for airing corruption allegations.

But how much is Cambodian culture to blame for the stalled progress of legal reforms? Lao Mong Hay, a campaigner at the Hong Kong-based Asian Human Rights Commission, said the communist political culture of the 1980s – rather than Cambodia’s Buddhist tradition – was to blame for the present state of the rule of law.

The civil law system introduced by the French had planted a seed of judicial independence that was uprooted by the onset of CPP rule in 1979, he said. “Communism, after the ousting of the Khmer Rouge, suppressed all notion of the rule of law and the independence of the judiciary,” he said. “Its legacy is like a very heavy iron ball tied to Cambodia’s foot.”

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Last week I received via email a mysterious invoice from the University of Melbourne Student Union (UMSU) instructing me to pay (via cheque or direct bank transfer) the sum of $226.00, purportedly for the quantity of 1 (one) ‘Bound Farrago Editions’. Remembering the miscommunication and bureaucratic tomfoolery that resulted in said purchase, I was unexpectedly swamped with warm memories of my time in the Union — of gin-swilling in the Farrago office and mud-slinging on Council.

It’s only now — nearly six months out — that I realise just how much I owe (aside from the aforementioned fliff) to UMSU and its corps of scraggy activists.* My year in the union taught me to defend my beliefs passionately; it also exposed me to that tired brand of leftism that wheezes on in the iron lung of the academy, giving me the opportunity to formulate my own system of liberal politics in its place. The Union provides the sort of departure point for contemporary political debate that Cambodia — a place where left and right are even less meaningful than at home — can never hope to. How I miss the kindergarten combativeness of Union activism, with its self-parody and lonely excesses! It is to real politics what The Bold & The Beautiful is to the whole technicolour glory of life itself.

I also fear that being around rational, intelligent individuals for the last two months has blunted the pugnacious edge to my writing — and what better way to tune up than with another excoriation of the lazy formulas that masquerade as critical thought on the New wing of the Left? Most of the following was written sometime last year as an argument (if I recall correctly) against affirmative action, but it could apply in equal measure to the issue of selective censorship, which I’ve used as an introduction and an extension of my past commentaries on the subject.

After receiving a copy of Ramon Glazov’s piece from edition three of Farrago, I am even more bewildered why it should have been a target of political action. As far as I can make out, Glazov raised hackles around the Union by using the phrase ‘yellow dollar’ to describe the premiums that the university squeezes out of its Asian students. So what? I’ve already argued at length that personal ‘offense’ is a spurious basis for censorship. Most confusing, however, was the reference in the UMSU Council motion to the ‘queer, women [and] international students’ who may have been ‘offended’ by the expression. Let’s assume for a moment that Glazov’s comment was an overtly racist one. Why should women, gays, lesbians and international students as a group have any more reason to be offended than white men who oppose racism? Why are certain categories deemed more ‘sensitive’ to offense and worthy of protection than others?

In a influential 1968 essay entitled ‘Repressive Tolerance’, German philosopher Herbert Marcuse argued that traditional freedoms and liberties had been co-opted as tools of oppression by the ruling class, which used their claim to ‘tolerance’ as a smokescreen for the perpetuation of ‘oppressive’ and exploitative practices. Marcuse denied that these rights were inviolable, arguing quite openly that their selective restriction was necessary if marginalised groups were ever to achieve ‘liberation’ from their circumstances of oppression. Aside from arguing that potentially repressive means were justified by wooly, panglossian ends, Marcuse created a unbridgeable division between those who supported the status quo and the mass of ‘victims’ who were presumed to oppose it. Both groups were seen as undifferentiated and monolithic, providing a carte blanche justification — when ‘the revolution’ finally arrived — for the arbitrary restriction of the rights of whole groups on the basis of subjective judgments. If white men benefited from the economic and social status quo and certain minority groups experienced discrimination, the state should reduce the rights of those deemed privileged and ‘redistribute’ them (so to speak) to the disadvantaged.

But on university campuses, the only place where this pseudo-Marxist cant has taken any root, it has failed as a program for political action: if women, queers and ‘students of colour’ have at certain times and places been subjected to grave injustices (including imagined ones in the pages of the student paper) it is hopelessly misguided to interpret them as a unified political class with a unified set of political interests. Indeed, this is tantamount to saying that the interests of all women and all queers and all international students are essentially interchangeable; that they all, at the bottom of it, want the same thing. This is the intellectual equivalent of the first little piggy’s house: an edifice of straw and hay that can be toppled with barely a huff of common sense.

Anyone who has breathed the air outside of the hermetic confines of gender studies or New Left theory will realise that the categories of class, race, gender, religion and sexuality cross and overlap in complex ways, muddying the neat classifications of identity politics. This has implications for those who argue in favour of ‘protection’ for groups on the grounds of historical disadvantage: who, for instance, can say objectively whether a middle-class woman is more or less disadvantaged than a working-class man, or whether a male African immigrant is more or less ‘structurally oppressed’ than a cosmopolitan lesbian? Some obviously experience disadvantage some of the time, but how — aside from sheer hopeful divination — does one quantify relative levels of discrimination?

As absurd as these conjectures are, they are pertinent for the radical left, since they would presumably determine the relative level of bureaucratic recognition that individuals would receive in a Marcusean state. Giving certain groups the legal (or quasi-legal) right to, say, freedom from ‘offense’ requires that they pass some hypothetical ‘disadvantage test’, proving that they have been victimized enough to qualify for these rights. That Caucasian men are ruled out at the outset is a sine qua non: their membership of a perceived historical in-group of oppressors and tyrants overrides any idea that individual rights should be applied equally. However, life shows us that there are outliers in every group — conservative lesbians, female tyrants, straight white males who melt into a puddle at the most innocuous Glazovism — who will always defy categorisation. Left-wing radicals who generalise about the proclivities of ‘white males’ — and thus justify stripping them of certain rights — are qualitatively no different from right-wing bigots who once advocated the same treatment for ‘blacks’ or ‘gays’.

More important from a political perspective is the question of who would be wise enough to be the final arbiter of this ornate taxonomy of disadvantage. Marcuse would likely offer some political organisation with the power to back its decisions with force; but any state ruled by such a power, where resources and rights are apportioned arbitrarily according to relative levels of disadvantage — according to what one is rather than what one does — fails all but the most elementary tests of ethics. This Marcusean logic totally subsumes the individual within monolithic categories, disregarding the dimension of individual psychology, which arguably affects human behaviour as much as membership of any historical ‘group’.

To branch out one step further: it is even more daft that ‘capitalism’ should be indicted, as it so often is, as the mainspring in this structure of gender/class/race oppression. Pure, corrupt capitalism — vividly caricatured in Upton Sinclair’s 1906 novel The Jungle — is brutal and cruel, but liberal capitalism, regulated by government, is by its very definition non-discriminatory. Certainly, it discriminates against the lazy and indigent; but individual rights apply to all, and resources are apportioned on the objective basis of ability rather than on the subjective basis of entitlement. F.A. Hayek openly admitted in The Road to Serfdom that capitalist systems create economic inequalities, but argued that these inequalities were ethically acceptable since in a properly functioning system they are not determined in a discriminatory way. He contrasted this with socialist (or strongly social democratic) systems, in which positive discrimination is used to ‘force’ economic equality, purposely constraining or elevating the priorities of whole swathes of society in the process.

You wouldn’t know it from his Reaganite-Thatcherite admirers, but Hayek looked upon nationalised health, education and welfare systems with some favour: in fact, he supported any measure that could, in a non-discriminatory way, increase equality of opportunity, ensuring people were given equal — or as close to equal as possible — chances in the free market. But Hayek’s most valuable insight was that individual rights are meaningless unless applied equally. He acknowledged the logic behind discriminatory government policies, but cautioned against individual liberties being truncated out of an impatient desire for change:

There is some danger that our impatience for quick results may lead us to choose instruments which, though perhaps more efficient for achieving the particular ends, are not compatible with the preservation of a free society… [such as] the tendency to rely on administrative coercion and discrimination where a modification of the general rules of law might, perhaps more slowly, achieve the same object.

This is why campaigns against racism and sexism must fight words with words, and actions with actions, all the while maintaining a firm distinction between the two. To arbitrarily restrict the rights of one group to the supposed, but often mistaken, benefit of others is to take a step away from the Enlightenment ideal of equality before the law, which underpinned the civil rights struggles of the 1960s and continues to provide the best compass for progressive change. True racists and sexists will not be deterred by censorship, and their worldview will persist regardless of the saber-rattling of the origami activists on our university campuses. History teaches us that positive change can occur; but it also warns against forcing the pace of progress to the satisfaction of hobby-horse politics and personal vanity.

Let these paper tigers burn.

*Of course, every generalisation I make about the Student Union is just that: a generalisation. There are many within UMSU who do excellent work — this includes the caretakers, administrative staff and a fair portion of the representative wing — and anyone who knows me will know to which factions and individuals I refer when I talk about the minority of bunglers, utopianists, supplicants and bootlicks that burrow through the wood heap of student politics.

After getting myself up to date with the slow progress of the Khmer Rouge trials, I’ve put together a new article for the London-based libertarian magazine Spiked Online, which has since been published and ‘syndicated’ (i.e. copied and pasted) to a number of Cambodian news blogs. In my piece, I take a critical look at Western involvement in the trials, arguing that the international community’s commitment to impeccable standards of justice — as noble as it is — could end up derailing the tribunal process altogether.

While putting the Spiked piece together, I started forming some more involved theories about international war-crimes tribunals. First of all, I asked the most obvious question: what purpose are they intended to serve? There is often talk of bringing ‘justice’ to war-torn countries and ‘righting the wrongs’ of the past through fair and impartial trials. On the face of it, this makes plenty of sense. But in the context of international intervention, such an instrumental form of justice cannot avoid the taint of politics: after all, ‘wrongs’ can only be ‘righted’ if tribunals yield ‘guilty’ verdicts. Many international tribunals are therefore coloured by presuppositions of guilt which, while often right and just, belie their claim to total impartiality. This is hardly surprising, since there are many actors with a political stake in war-crimes tribunals: the ‘victors’, or those who rise to power in the wake of the war-criminals’ deposition, for whom the trials are an opportunity to legitimize the conflict or armed coup or foreign intervention that brought them to power; then there is the omniscient community of governments and international NGOs, which, in its goal of bringing ‘justice’ and accountability to unstable regions, requires that their involvement is vindicated with ‘results’. For both these groups, justice is a means to an end. It serves an overtly political function.

Now, this is arguably acceptable so long as the tribunal brings some tangible good to the country on whose behalf it has been established. It might, for instance, help heal the wounds of war and provide resolution for a dark chapter of a nation’s history. More specifically, it might also help train local magistrates in international legal procedure or serve notice to corrupt individuals that their days of living in impunity are over. However, the veneer of commitment to impartiality and due process — the pretence that any tribunal operates in a political vacuum — can compromise justice in two ways. Firstly, legal fastidiousness can delay the establishment and operation of a tribunal until most of the defendants are either dead or physically unfit for trial. This has been a major problem in Cambodia, where tortuous negotiations between the Hun Sen government and the United Nations Office of Legal Affairs delayed the establishment of a Khmer Rouge tribunal by six years. Even now, nearly eleven years after the Cambodians first requested legal aid from the UN, the trials are yet to get underway. The surviving Khmer Rouge leaders are frail, unhealthy octogenarians and may not live to see a verdict.

A second possibility is that the defendants might be legitimately acquitted. If a tribunal is really as impartial as it claims, and the defendants are given the full spectrum of rights of appeal and due process, they might be able to fudge and prevaricate their way to an acquittal or bog proceedings down with a unending string of procedural appeals. And while war-crimes or crimes against humanity usually leave ineradicable evidence, it can sometimes be difficult to pin them on particular individuals. Attenuated hierarchies of command often separate war-criminals from the effects of their actions on the ground, and it can be hard to prove individual culpability for crimes that were committed under the oversight of local leaders or involved verbal — that is, improvable — orders to subordinates. (As the judges at the 1945 Tokyo trials discovered, establishing ultimate responsibility for crimes against humanity is a thorny issue. Lacking firm evidence of personal culpability, the Allies resorted to hanging several Japanese generals for crimes of omission — i.e. for not enforcing discipline in the ranks).

Similarly, the defence may choose to take the path of legal obfuscation, binding the proceedings in so thick a web of red tape and legal appeals that any verdict will be delayed almost indefinitely. Both hypothetical outcomes demonstrate how legitimate trials can be rendered useless by the purity of their intentions. In the case of some international tribunals — and certainly in Cambodia’s — it may be that effective justice and fastidious impartiality are impossible to obtain in equal measure.

The function of a war-crimes tribunal must be clear and unambiguous from the outset. If a tribunal is to be legally pure, international governments and NGOs need to have patience and realise that it may not deliver the desired ‘outcomes’. If, on the other hand, governments are interested in the political effect that a successful prosecution might have, they’d do well to drop the pretence at impartiality and let justice be delivered swiftly and earnestly. However, no good (except, perhaps, a political one) is served by weaving a web of legitimacy for institutions that are inherently — though perhaps necessarily — flawed.

(As much as it pains me to admit it, Saddam Hussein’s trial was a good example of swift (and unabashedly political) justice, albeit one that was overshadowed by the sheer dangerous insanity of invading and occupying Iraq with barely 150,000 troops, disbanding the Iraqi army and then declaring ‘mission accomplished’ before the Ba’athist/Islamist/nationalist insurgents even had time to dust off their AK-47s. Now, if the Iraqi tyrant had been strung up by a Kurdish or Shi’ite militia rather than the gloating US military, I’m sure many anti-US commentators would be more tolerant of its legal shortcomings).