Is a war crimes tribunal being used to settle political scores? If so, it may unleash social chaos, reports Sebastian Strangio.

Published in The Diplomat, July 22, 2010

DHAKA – BANGLADESH’S Liberation War Museum sits on a quiet street in central Dhaka, shaded by trees and fronted by an austere barbed wire fence. The small building commemorates the country’s 1971 liberation struggle, a fierce war of independence from Pakistan that cost an estimated 3 million lives. An eternal flame in the museum’s courtyard marks it out as a site of martyrdom—a reminder of the bloody star under which the country was born. Almost fittingly, dozens of small Bangladeshi flags are intertwined on the rusting barbs of the museum’s front fence.

Last week, Bangladesh’s government arrested two leading politicians from the country’s main Islamist party, Jamaat-e-Islami, on charges of committing mass murder during the liberation struggle. The arrests, which followed the detention of the party’s president, Motiur Rahman Nizami, and other top Jamaat officials in late June, mark the first stage of a tribunal established in March to address war crimes committed during the 1971 conflict.

A nationalist mural in Motijheel, the commercial heart of Dhaka. (Photo: Sebastian Strangio)

But even though the tribunal has no scheduled start date, it has already whipped up controversy in Muslim-majority Bangladesh. The 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 and compromising Dhaka’s relationship with Muslim allies in the Middle East.

The tribunal comes after nearly four decades of inaction in Bangladesh. The 1971 conflagration, which erupted when Pakistan attempted to prevent the secession of its eastern wing, included the systematic execution of leading Bengali intellectuals and the rape of by some estimates 200,000 women. Although the process of putting collaborators on trial began after the defeat of the Pakistani army on December 16, 1971, the tribunal process was derailed after the assassination of independence icon Sheik Mujibur Rahman in August 1975. Ahmed Ziauddin, an advisor to Bangladeshi rights group Odhikar, says that 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.

‘The current process is, if you like, unfinished business that started in 1972,’ he says.

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The West is turning the trial of surviving members of the Khmer Rouge – its former allies – into a piece of self-promoting political theatre

By Sebastian Strangio

Published in Spiked Online, February 18, 2008

FOR nearly three decades, Cambodians have lived under the shadow of Pol Pot’s ‘Democratic Kampuchea’, a regime whose policies during 1975-79 turned Cambodia into a ‘land of blood and tears’ – a vast agrarian social experiment that enslaved the population and led to the deaths of an estimated 1.7million Cambodians.

In the years since, no senior leaders of the Khmer Rouge have been punished for the atrocities of Pol Pot’s regime. But time may finally be catching up with the surviving Khmer Rouge. Following six years of acrimonious negotiations between the UN and the Cambodian government, the Extraordinary Chambers in the Courts of Cambodia (ECCC) was established in 2006, with the hope that ‘the senior leaders of the Khmer Rouge and those most responsible for serious crimes [would now] be held accountable for their crimes’ (1). A number of prominent ex-Khmer Rouge, including Nuon Chea, Khieu Samphan and Ieng Sary, have been arrested and are scheduled to enter the dock in the coming months.

But for all its high-minded rhetoric, it’s unclear whether the ECCC will be able to deliver the ‘justice’ it is promising. The ‘mixed’ (joint UN-Cambodian) tribunal is beset by ballooning budgets and legal red-tape, and the proceedings are crawling along at a glacial pace. Last month, the ECCC revised its budget upwards to $169.7million – up from an original $56.3million – and pushed back its expected finishing date until the end of 2011. Even compared to other international tribunals, which have numerous problems of their own, justice for Cambodia isn’t coming cheap. The hybrid UN tribunal in East Timor had an initial budget of just $6million, while the court in Bosnia & Herzegovina is currently trying 400 defendants on a relatively frugal $10million per year (2). So far, just five defendants have been arraigned by the Phnom Penh court – at an ultimate cost of nearly $34million each – and it has yet to move beyond a series of lengthy pre-trial appeals.

However, since the trials are expected to last at least until 2011, there’s every chance that the defendants will be dead before the ECCC has a chance to hand down its verdict. Pol Pot – ‘Brother Number One’ – evaded justice by dying in mysterious circumstances in April 1998. In 2006, the one-legged Ta Mok – nicknamed ‘the Butcher’ for his ruthless purges – died in prison. Of the current defendants, ex-head of state Khieu Samphan suffered a stroke on the eve of his arrest in November last year (3), and Ieng Sary, Pol Pot’s foreign minister, was admitted to hospital on 4 February this year with heart problems (4). With such frail defendants in the dock, speed and efficiency are clearly of the essence.

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In between lounging in the backyard and assaulting Robert Fisk’s brick-like The Great War For Civilisation, I’ve been immersing myself in readings about the Khmer Rouge Tribunal — scheduled, after nearly two decades of diplomatic evasion and acrimonious negotiations, to begin operation sometime in 2008. But after again reading about the tribunal’s tortuous gestation, I’m growing increasingly pessimistic as to when — and to what degree — justice will ever be done. The Extraordinary Chambers in the Courts of Cambodia (ECCC) are now in the process of processing appeals against the provisional detention of the five defendants — KR heavyweights Ieng Sary, Ieng Thirith, Khieu Samphan, Nuon Chea and Khang Khek Iev — and the procedure (checks, balances and all) is crawling along at a glacial pace.

Given that the trials are expected to last three years, there’s every chance that the defendants will be dead before the ECCC has a chance to bring them to trial. Pol Pot evaded justice by dying in mysterious circumstances at his jungle headquarters in April 1998, while the one-eyed Ta Mok — nicknamed ‘the Butcher’ for his ruthless purges — died in prison in 2006 while awaiting trial. Several of the current defendants, including ex-KR head of state Khieu Samphan — who reportedly suffered a stroke on the eve of his arrest in November — are in similar ill-health, making a speedy and efficient trial a high priority. A degree of procedural fastidiousness is vital for the ECCC’s international credibility, but should not be allowed to compromise its avowed aim: to bring the remaining Khmer Rouge leadership to justice.

This tension between international and local imperatives has plagued the relationship between the UN and the Cambodian government since the latter requested international assistance for a trial in 1997, with the constitution of the court a constant sticking point. The Cambodians consistently argued that the trials had to take place firmly within the context of Cambodian national sovereignty and involve a majority of local judges and prosecutors. (This was a logical outcome of a history of constant foreign intervention in Cambodian affairs — by the French, Americans, Vietnamese and, for a short period in the 1990s, the UN itself). Many in the international community, on the other hand, expressed fears that a trial conducted in Cambodia’s court system, and under Cambodian law, could never deliver a fair and transparent verdict. NGOs such as Human Rights Watch and Amnesty International pointed to the government’s penchant for meddling in the workings of the judiciary, which, while nominally independent, was more or less subordinate to the ruling Cambodian People’s Party (CPP). Concerned about the UN’s international reputation in the lead up to the 2003 American invasion of Iraq, Secretary-General Kofi Annan was hesitant to involve it in any trial that could be seen as corrupt or politically motivated. The UN negotiating team, led by the Swedish diplomat Hans Corell, steadfastly asserted that any KR tribunal had to be composed of international judges and prosecutors, preferably conducted in a third-country location. This the Cambodians refused. In February 2002, Corell withdraw from the negotiations altogether, infuriated by the ‘obfuscation’ of the Cambodian negotiators.

The ‘mixed’ (joint UN-Cambodian) tribunal model that was finally signed into existence in June 2003 was a child of political compromise, but turned out to be an innovation in international justice. The defendants would be tried using Cambodia’s domestic legal framework, in accordance with a domestic Khmer Rouge Trial law (passed in 2001), which incorporated articles from the 1948 UN Genocide Convention. The agreement established a tribunal consisting of a Supreme Court Chamber, composed of four Cambodian and three international judges; a Trial Chamber, consisting of three Cambodian judges and two international appointees; and a Pre-Trial chamber, composed of the same. The role of the prosecution and the investigative team were each to be shared by one Cambodian and one UN appointee.

A pre-trial hearing of the ECCC, November 2007.

However, the agreement elicited mixed reactions. Cambodian negotiator Sok An argued that it represented ‘a model that… can contribute to the development of international humanitarian law and contribute to legal and judicial reform in Cambodia’, a position shared by many Cambodia watchers and diplomats. But the 2003 agreement has come under fire from human rights NGOs for ‘falling short’ of international standards of impartiality and justice. Due to the ‘precarious state of Cambodia’s judiciary’, Amnesty International argued, the UN General Assembly should ‘make the improvements necessary to bring [the tribunal] agreement into line with international laws and standards’. For such critics, no trial was preferable to a ‘flawed’ one — a noble enough sentiment, but one that disregarded both the practical considerations of attaining such a ‘perfect’ form of justice, and the moral imperative of allowing some degree of Cambodian involvement in the trial process.

There was also a lingering fear that certain leading Khmer Rouge could be exempted from prosecution by the personal arrangements that secured their defections to the government in the 1990s. Ex-DK foreign minister Ieng Sary was the recipient of a royal amnesty in 1996, which protected him from the death sentence handed down by a 1979 show trial, and there were fears that this would be dusted off and presented in his defence. Likewise, Khieu Samphan and Nuon Chea returned to the capital in 1998 under a Thai-Cambodian agreement that protected them from arrest. Will prime minister Hun Sen flex his political muscles to secure their acquittal? Both seem unlikely. During the trial negotiations, the UN representatives clearly stated that nothing could prevent a prosecution for the crime of genocide (the only conviction that Ieng Sary’s amnesty specifically annulled). And the CPP, for all its flaws, is the only political group to have consistently advocated a Khmer Rouge trial since their overthrow, and stand to reap much political capital from an open and transparent trial process.

As American lawyer Gregory Stanton has argued, the real ‘enemy of justice’ in Cambodia is a well-meaning but misdirected legal purism, which, if heeded, would only give succour to Cambodia’s culture of legal impunity. Some degree of justice is better than none at all — and the ECCC would appear to be Cambodia’s last chance at absolution.