The Cambodian Genocide Court: Lessons for the ICC in Uganda?

The Cambodian Genocide Court: Lessons for the ICC in Uganda?

JURIST
3 December

JURIST Guest Columnist Wes Rist of the University of Pittsburgh School of
Law says that especially in the context of its troubled pursuit of Ugandan
rebels, the International Criminal Court in The Hague might take a leaf from
the book of the new Extraordinary Chambers in the Courts of Cambodia and
pursue a more cooperative attitude with local governments instead of simply
seeking to enforce its writ regardless of potential domestic costs or
consequences...

Late last month the first formal arguments were heard before the
Extraordinary Chambers in the Courts of Cambodia (ECCC), as former Khmer
Rouge official Kaing Guek Eav - also known as Duch - filed an appeal for
bail before the body and Cambodian prosecutors opposed the motion. While the
Duch case is a fascinating one, the real importance of this first step for
the ECCC is its reflection of the cooperation that has existed between the
United Nations and the government of Cambodia in the establishment and
operation of the tribunal, and the example that sets for international
involvement in the punishment of domestic human rights abuses generally.
This cooperative spirit is exactly the kind of attitude the International
Criminal Court (ICC) should adopt in its interactions with Uganda concerning
the recent indictment of senior Lord's Resistance Army officials, instead of
the rather hostile tone it has taken since President Yoweri Museveni
requested that the ICC reconsider its indictments against Joseph Kony and
his four senior lieutenants.

There is little doubt in anyone's mind that the Khmer Rouge in the late
1970s committed some of the worst crimes against humanity ever perpetrated
in the modern world. With an estimated 1.7 million individuals dead or
missing from that time period, the staggering sociological impact is still
felt in Cambodia today. An entire generation of workers, educators, and
spiritual leaders was wiped out. Not only did this deprive Cambodia of those
people and their skills, but it also ensured that the current generation of
Cambodians had no one to train them in the careers represented. There are no
well-staffed medical schools to train new doctors, no law professors to
train new lawyers, no monks and priests to train the next generation of
devotees; they were all eliminated by the Khmer Rouge.

With the last decade and a half of focus on prosecuting perpetrators of
crimes against humanity, there was finally enough international attention on
the issue for the Cambodian government to consider the possibility of
pursuing justice against these individuals. Many of the worst offenders had
been arrested and detained in the late 1990s as the Cambodian government
sought to demonstrate that atrocities committed by the Khmer Rouge were
unacceptable. But the Cambodian government lacked the resources to pursue a
large scale prosecution of Khmer Rouge officials on its own. Enter the
United Nations. Interest in creating a Special Tribunal for Cambodia was
growing and the UN originally seemed to consider something like the ICTY or
ICTR to be the way to go.

But Cambodian officials had watched the events in the ICTY/R carefully and
they were aware of the complaints against the tribunals for imposing Western
concepts of justice on a people that were looking for something relevant to
their culture, not to an official in Geneva or New York. Cambodia held out
for a fully domestic court system to hear the Khmer Rouge cases and
eventually, the Agreement Between the United Nations and the Royal
Government of Cambodia was signed in 2003. The Agreement specified that the
trials would occur under Cambodian domestic criminal law, but with
assistance from international experts and guidance. The agreement also set
out the legal authority for the court, later formalized in Cambodia's Law on
the Establishment of Extraordinary Chambers in the Courts of Cambodia, and
the procedures that would be used, which represented a careful agreement
concerning international standards on judicial guarantees.

The ECCC's hearing concerning Duch's detention is merely the first step in a
long road. Circumstances demand that it be a rapid road, too, as many of the
worst offenders are nearing the end of their natural life spans. But the
work the ECCC has been doing in the short time since its creation is
encouraging. Provided funding stays strong, the opportunity for the
Cambodian people to see justice done is very strong. This cooperative
approach to solving issues of national justice and international concern for
procedural fairness and judicial guarantees is the true value of the ECCC in
a rapidly globalizing legal community. And the ECCC represents more than
just a solid collaboration between a national government and the UN, it is a
sound guide for the International Criminal Court as well.

The ICC itself is barred from hearing Khmer Rouge cases, as it can only try
crimes that occurred after the Rome Statute entered into force. However,
even with its current cases, the ICC is running into criticism over
Westernized justice that the ICTY/R faced. Specifically, in the Court's
Uganda case against leaders of the Lord's Rebellion Army, growing numbers of
Ugandans wish to see the ICC withdraw its indictments of Joseph Kony and his
top lieutenants, who have publicly stated that they will not pursue further
peace talks unless the ICC arrest warrants are withdrawn. The ICC has
repeatedly declined to review the indictments and just last week issued a
strong statement claiming that any consideration of withdrawing the
indictments would amount to throwing justice out the window.

While there is certainly a justified reluctance in the international
community to allow for grants of amnesty or immunity in cases of ongoing
conflicts involving war crimes or crimes against humanity, the ICC seems to
be ignoring the lesson that the ECCC offers. By working with, rather than
against, a domestic government, the international community has a much more
valuable role to play in seeing justice done for the worst crimes committed
against humanity. Would amnesty for Joseph Kony and his lieutenants be a sad
alternative to seeing them in the dock before judges at the ICC? Certainly.
Is it a worthwhile price to pay to end the killings currently continuing in
Uganda? That's an issue that the Ugandan people and government should be
able to decide.

The ICC's writ is based on complementarity. Since the Ugandan government
invited the ICC to investigate the crimes committed by the Lord's Resistance
Army, that initial determination of complementarity was waived. But I
strongly doubt that there is a sufficient legal argument to be made that
once a government invites ICC involvement, it no longer has a say in the
internal affairs of its own country relating to that involvement, especially
when the lives of its citizens are at stake. At this point, there needs to
be a discussion of when the ICC's desire for justice is becoming an
institutional goal that is accomplished at the expense of the people the
Court is supposed to be seeking justice for. When the ICC is sacrificing
lives, albeit indirectly, in order to accomplish the prosecution of five
men, I begin to question what definition of "justice" is being served.

As a lawyer, the idea of an amnesty for Kony and his men troubles me
greatly. As a human being who has talked with victims of crimes similar to
those of the LRA in Uganda, I have to wonder if the ICC cannot find another
way to work towards justice that will not result in greater loss of human
life in Uganda. There is sufficient leeway in the ICC statute for the Office
of the Prosecutor to work with the Ugandan government in seeking an
immediate end to a conflict that has raged for decades and has claimed much
of the youth of the country. There are certainly valid arguments that
obtaining justice in a court will go further towards accomplishing long term
peace than any cease fire or political truce. But I question the impact of
that justice in obtaining long term peace when the trial is not in Ugandan
courts, not in Uganda at all, and will most likely never be seen or
experienced by the majority of the Ugandan people. Outside of domestic
prosecution of Kony, the long term benefits of courtroom justice pale in
comparison to the very real benefits of preventing any more children being
kidnapped and employed as child soldiers.

Instead of championing its own causes and reaffirming the need for its own
existence, the ICC should be considering what "justice" it was created to
serve. If the Office of the Prosecutor can look Ugandans in the face and
tell them that it is better that they die and Kony is tried than that they
finally find peace in their country, maybe they are pursuing the right
track. Otherwise, perhaps they should consider the ECCC and the example it
sets for cooperation between international organizations and domestic
governments.

Wes Rist is an Adjunct Professor and Assistant Director of the Center for
International Legal Education at the University of Pittsburgh School of Law.
He was a member of JURIST's student staff from 2004-2006, and served as
JURIST's International Law editor from 2005-2006.