War Crimes & the Price of Justice

ASIAWATCH — As Cambodians working for the ECCC wonder when they will next be paid, Luke Hunt takes a look at war crimes tribunals around the world and says the Cambodian efforts is not the only tribunal with issues.

Putting a price on a human life has never been an easy issue.  Hospitals constantly face financial pressures but the rights of patients to their privacy ensure that such awkward subjects are handled from behind closed doors.

Courts, however,  and the public’s right to know tell a different story. The exorbitant costs often associated with delivering justice are at times kicked around with as much force as a political football before an election.

In Cambodia, this has remained a sore point since 1998 when Prime Minister Hun Sen served the United Nations with his wish list, following a coup and a series of skirmishes that finally ended three decades of war and left him at the helm of an impoverished, war ravaged nation.

The Prime Minister needed money and, despite his misgivings, a UN endorsed tribunal mandated with finding justice for up to 2.2 million people who perished under the Khmer Rouge and the traumatized survivors who watched helplessly as the ultra-Maoists annihilated his country’s culture.

Such a tribunal had been touted since 1979 when a Vietnamese invasion ended Pol Pot’s bloody rein of three years and eight months but remained unrealised amid Cold War politics and the ongoing civil war.

Amid the arguments were the dirtiest of questions: How much? And who should pay?

A figure of $56 million was costed for the first three years of the Extraordinary Chambers for the Courts in Cambodia (ECCC), but this would eventually triple and the often screaming critics have found some traction for their arguments that the tribunal was flawed and the money wasted.

“It’s difficult to monetize the value of justice for victims of mass crimes, but all recent examples have shown that prosecution of international crimes such as genocide and crimes against humanity requires substantial resources,” said ECCC spokesman Lars Olsen.

The ECCC has spent about $150 million dollars since its investigations began in 2006.

The biggest funders are the Japanese with $70.57 million to date and cynics argue Tokyo enjoys funding the tribunal if only to embarrass their traditional enemy China, which backed, traded and sent foreign aid to the Khmer Rouge.

Australia is ranked second with $14.2 million. Germany, the United States, France, the United Kingdom and a UN Trust Fund follow. Cambodia has spent about $5.16 million or 4.0 percent of the overall total.

Thirty countries and groups have contributed including Microsoft with a donation of $100,000, substantially more than the $25,000 from Thailand, which along with Western powers lent support to the Khmer Rouge who continued to battle occupying Vietnam troops until 1989.

Namibia and Armenia also gave small amounts, which Helen Jarvis, a senior advisor to the Cambodian government, said was telling given their own experiences with war and genocide.

“It’s not a great amount of money,” she said. Jarvis has been a diehard supporter of the ECCC since its inception and is a former head of the court’s victims unit. “It’s about the cost of one bridge. Is one bridge worth more than justice for so many people? I don’t think so.”

Others like Brad Adams of the New York-based Human Rights Watch, however, are unimpressed claiming political interference has tainted the ECCC and the tribunal was delivering too little too late.

“After five years and more than $150 million, the court has tried just one defendant, Kaing Guek Eav, alias Duch, the warden of the infamous Tuol Sleng detention center where approximately 14,000 people were tortured and then executed,” he said.

In Case 001, Duch was sentenced to 35 years behind bars and has appealed. A decision is expected on February 3. Currently before the ECCC bench in Case 002 is party ideologue Nuon Chea, 85, former head of state Khieu Samphan, aged 80; and ex-foreign minister Ieng Sary, 86.

Allegations included crimes against humanity, murder, genocide, and torture. The three are the remaining survivors of the Khmer Rouge Standing Committee that wrote and deployed government policy.

Members of that committee have always been the main targets of tribunal investigators. The court has heard grisly evidence of mass graves, cannibalism, rape, forced labor and bizarre forms of torture that ranged from electrocution to being fed to the fish.

Olsen added that the ECCC was not costing more than other tribunals, in fact the Khmer Rouge Tribunal is relatively cheap. The International Criminal Tribunal for the former Yugoslavia (ICTY) has spent more than $2.0 billion since 1993 securing 63 convictions with another 35 on trial. The International Criminal Tribunal for Rwanda (ICTR) has spent $1.4 billion since 1994 winning 44 convictions with another 22 cases being heard.

The Special Court for Sierra Leone has jailed eight people at cost of $200 million since 2002 and there is also the International Criminal Court (ICC) with an annual budget of $150 million but it can only hear cases concerning crimes that were committed since its inception in mid-2002.

Xavier Rauscher, a British based specialist in the laws of conflict, wrote in the International Jurist that the ICC had been subjected to a litany of complaints as it “offers even less value for money, having so far yielded only a dozen arrest warrants and indictments, all relating to Africa.”

Nevertheless he added the ICC’s supporters could justifiably argue the court’s existence had huge indirect benefits and sent a powerful message, “signaling to wrongdoers all over the world that their misdeeds risk retribution and that might does not always equal right.”

The ECCC has spent about $30 million a year since investigations began five years ago, a third or more cheaper than the ICTR and ICTY. Costs are kept down by combining locals with international staff in a hybrid system of Cambodian and international laws.

As a result the ECCC has been dubbed the most complicated war crimes tribunal since Nuremberg, established to try Nazis in the aftermath World War II but this has not stopped the UN from emulating this model in Sierra Leone and Lebanon.

ECCC sources said foreign judges and lawyers were being paid between $120,000 and $150,000 a year which was could hardly be considered exorbitant when compared with a Western banker or a defence attorney in the US or a prosecutor in London. Local ECCC staff make about half the amount paid to internationals.

But the carping by critics has been relentless and Adams is among the harshest, particularly over whether further indictments should be issued for Case 003 and 004 involving another five lower ranked cadre who were allegedly involved in the slaughter.

About 800,000 people are thought to have died violently, the rest lost their lives through starvation, illness and exhaustion brought on by forced labour camps.

Joining Adams is another fierce critic, the George Soros funded Open Society Justice Initiative, which is urging the UN to establish an inquiry into allegations of judicial misconduct involving investigations into those potential prosecutions.

Adams’ claims are ambitious and a little shrill.

He has also said there was wide agreement in UN circles that the ECCC “is a mistake that should never be repeated elsewhere” and that the reputation of the UN in Cambodia was at stake unless it acts “to reverse the ECCC’s descent into quagmire”.

There are also concerns over the appointment of judges and lawyers.

The ECCC has taken significant steps to reduce costs and hasten the pace of the hearings amid fears the three currently before the court will die of old age before justice is served.  This includes splitting Case 002 into mini-trials with the current tribunal dealing crimes against humanity.

Costs aside, Rauscher added there were real advantages to the hybrid system.

Importantly, justice is rendered to international standards and hybrids tended to be more respectful of sovereignty as opposed to a fully-fledged international court. As such this mix of the domestic and international also increases the legitimacy of the court in the eyes of the public.

That recognition is on show on the manicured lawns outside the ECCC where survivors of Pol Pot’s regime queue-up  with monks, farmers and school children, all hoping for a front row seat of the most important show in town.

About 100,000 people have visited the court. Hearings are broadcast live and most Cambodians are for the first time hearing for themselves what happened here when their families and friends — like their livelihoods and culture – were obliterated in one of the great tragedies of the 20th century.

Once Case 002 concludes the ECCC will probably have racked up a bill around $200 million, that’s about $100 for every person who died here when the Khmer Rouge ran what they called Democratic Kampuchea.

And according to people like Olsen and Jarvis and the thousands that arrive here each week in buses and cattle trucks to catch a glimpse of Pol Pot’s surviving comrades, that’s not a bad deal.


 

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Luke Hunt is a foreign correspondent, author and occasional photographer who has covered much of Asia fr the last 30 years.

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