When one examines the details of how tribunals are structured, it becomes clear that no solution can yield a completely satisfactory outcome on all the competing values at stake. We see, for example, a range of approaches to the question of personal jurisdiction, that is, who should be prosecuted in a genocide tribunal. Though the approaches vary widely, each of them has both advantages and disadvantages with respect to the question of impunity. Cambodia's 1979 People's Revolutionary Tribunal prosecuted only two people, leaving many other culpable senior leaders untouched, along with the thousands of people who carried out the actual killing. The ICTR has indicted and/or prosecuted more than seventy people, but this is totally unsatisfactory to many Rwandans, who find tens of thousands of genocide perpetrators living among them. The ICTY has indicted some 150 individuals, creating a large and time-consuming caseload but still leaving many perpetrators harmless in the former Yugoslavia. The Ethiopian courts are prosecuting more than 5,000 suspects, though that process has been criticized for violating the rights of the accused, and in any case it still leaves low-level perpetrators beyond the reach of the law. In Rwanda, more than 100,000 persons suspected of involvement in the genocide have languished in detention for years with no prospect that they will ever receive fair trials in a court of law, solely due to the fact that the sheer numbers of accused overwhelm the capacity of the Rwandan justice system. As a practical matter, then, there may be no ideal solution to the problem of personal jurisdiction for the crime of genocide....
Another challenge in achieving justice for the Cambodian genocide has to do with the question of temporal jurisdiction, or the span of time during which applicable crimes may be prosecuted. The proposed Khmer Rouge tribunal would limit its temporal jurisdiction to the period between April 17, 1975, and January 7, 1979. Thus, only criminal acts that were committed in that time frame could be prosecuted by the Khmer Rouge tribunal. This makes sense, insofar as that was the period during which the Khmer Rouge controlled Cambodia 's capital and also the period of the most intense killing by the Khmer Rouge, but it is also true that the Khmer Rouge executed and otherwise abused many innocent people prior to April 17, 1975, and they also continued to carry out atrocities long after they were driven from power on January 7, 1979. By limiting temporal jurisdiction to this period, people who were victimized by the Khmer Rouge at any time outside of that tightly constricted time frame might feel as if they have been denied justice for the crimes committed against them and therefore that impunity continues to reign....
A similar set of questions could be raised with respect to the subject matter jurisdiction, or what crimes will be prosecuted. For example, a growing body of evidence suggests that rape was common at the lower levels of the Khmer Rouge security organization, particularly the rape of female prisoners who were slated for execution. Recent precedents established by the ad hoc international criminal tribunals mean that when rape is assessed as having been systematic or widespread, this could constitute a war crime or a crime against humanity. Rape in war is always a war crime, but what is new under these recent precedents, where widespread or systematic, is that it can now trigger the doctrine of "command responsibility," putting senior leaders at risk for the crimes of their subordinates. In the Cambodian case, however, the available evidence suggests that whenever the top leadership of the Khmer Rouge uncovered such "moral" infractions by their cadre, those accused of such acts faced summary execution. Consequently, the top Khmer Rouge leaders can argue that they did everything possible to suppress such crimes, and therefore they cannot be held responsible. If, due to the limited definition of personal jurisdiction, only top leaders are prosecuted, but they are absolved of responsibility for rapes, then any woman who was raped by a lower-level Khmer Rouge cadre or soldier may feel that she has not received justice and that impunity continues. Again, it would seem that there is no universally satisfactory way to address the problem of impunity for crimes on the scale of those carried out under the Khmer Rouge.
Another set of questions has to do with the extent of international involvement in a tribunal. The ICTY, the ICTR, and the ICC are in the nature of international experiments in combating impunity. As such, these judicial institutions have been fraught with start-up difficulties. They are also enormously expensive undertakings—which is one reason that several members of the UN Security Council were reluctant to see a similar model implemented in the case of Cambodia's Khmer Rouge. A major advantage of the ad hoc international tribunals is that they tend to provide the highest legal standards of international justice, but in so doing, they also require a great deal of time and money in order to render justice to only a small minority of the perpetrators. Moreover, with the ICTY seated in the Netherlands, and the ICTR in Arusha, Tanzania—both at some distance from the territories where the crimes were actually committed—the surviving victims who have the greatest right and need to see justice done in most cases are simply too far from the court to see any justice being done at all. On the other hand, in the Rwandan domestic prosecutions, in a country where the legal profession and the courts were totally destroyed during the genocide, the relative lack of international involvement can be seen as a factor contributing to the procedural shortcomings of the process and the long delays in rendering justice for the victims and the accused alike. The same might be said of the Ethiopian prosecutions.
Thus, there seems to be no optimum level of international involvement in tribunals designed to combat impunity. If the tribunal is entirely internationalized and seated outside the territory where the crimes were committed, there is a danger that those most in need of seeing justice done will not perceive any effective impact on impunity. Those few perpetrators who find themselves before the court will be prosecuted under alien laws and in an unfamiliar language, all far away from the scene of the crime. On the other hand, when tribunals are conducted strictly as a national affair in the immediate aftermath of terrible devastation, local judicial and political conditions may not be strong enough to deliver fair and impartial justice, as we saw with the People's Revolutionary Tribunal in 1979. However, it may turn out that the proposed mixed model for Cambodia—with internationals on the court and with the proceedings conducted where the crimes occurred—could be a good compromise to balance these competing values.
On balance, then, when we look under the hood of international tribunals at their internal workings, it is clear that there is no ideal, one-size-fits-all solution. When weighed against the enormity of the crimes at issue, questions of personal, temporal, and subject matter jurisdiction, along with the degree of international involvement, generally tip the scales of justice toward an unsatisfying outcome.
06 February 2009
Practical Problems of Genocide Tribunals
From After the Killing Fields: Lessons from the Cambodian Genocide, by Craig Etcheson (Texas Tech U. Press, 2006), pp. 183-187 (footnote references omitted):