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...
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.