Tried and found wanting [A Kingdom ruled by Strongmen, not by Law]

Asia’s dismal record on tackling war crimes is an indicator of illiberalism

The Economist - Nov 26th 2011

“Then there is political meddling and incompetence. No case 003 seems likely. That looks suspiciously convenient for Cambodia's current rulers and their cronies, anxious to avoid close scrutiny of their parts in the killing fields.”

BEHIND a huge bulletproof screen sit judges, lawyers and three wizened former leaders of the Khmer Rouge. In their 80s, the defendants may be the last people to be prosecuted over the deaths of at least 1.7m people in 1975-79, when the Khmer Rouge exercised monstrous power in Cambodia. Gawped at daily by busloads of onlookers—monks, black-clad teenagers, turbaned villagers, earnest foreigners—the men can expect to pass much of the rest of their lives in the Extraordinary Chambers in the Courts of Cambodia, a hybrid local and United Nations creation that sits just outside the capital, Phnom Penh.

The tribunal has an impossible job. The crimes in its ambit are too many and various for more than symbolic justice to be seen to be done. Set up in 2003 and now costing $40m a year, it has so far managed a single conviction, of Kaing Guek Eav, alias Duch, who ran the infamous Tuol Sleng prison, where 14,000 entered and only a dozen came out. Though a monster, he was a relatively low-ranking one, with a degree of remorse.

On November 21st prosecutors opened the case against the three defendants in “case 002” (numbered as if hundreds more were expected). The three are Nuon Chea, “Brother Number Two” and Pol Pot's right-hand man; Ieng Sary, the Khmer foreign minister; and Khieu Samphan, who was once head of state. Despite mounds of evidence, convicting them will be agonisingly complicated. The charges, including war crimes, torture and genocide against minorities, are cumbersome. To make things easier, the court is breaking the trials into pieces, starting with a case over the forced removal of city dwellers to the countryside in 1975. But the case could take years, and the three may never get to answer the graver charges.

 “...well-run trials bring real benefits. They help address “living wounds” that linger for decades after genocides, encouraging reconciliation, for example, by naming individuals, not whole groups, as guilty of particular wicked acts. More generally, they encourage respect for the law and impartial institutions. Sadly, for large parts of Asia with weak democracy and illiberal strongmen in charge, the chances of a fair reckoning for vile crimes are slender indeed.”

Then there is political meddling and incompetence. No case 003 seems likely. That looks suspiciously convenient for Cambodia's current rulers and their cronies, anxious to avoid close scrutiny of their parts in the killing fields. Court officials have resigned amid fierce public feuding, some between locals and foreigners. Critics say that some judges look partial or corrupt, so the court's credibility is at stake. Relatives of some victims are boycotting the court, and donors look twitchy.

Still, the proceedings' integrity is still just about intact. The same cannot be said for Asia's other current war-crimes trial, in Bangladesh. In 1971 several hundred thousand or more (mostly civilians) perished at the hands of Pakistani soldiers and local accomplices losing the bloody fight against secession. On November 20th the first defendant at the country's International War Crimes Tribunal, Delawar Hossain Sayadee, was charged with genocide, murder, rape, arson, abduction and torture. Mr Sayadee is a leader of a prominent Islamic party, Jamaat-e-Islami. Six opposition figures will probably join him in the dock.

The tribunal could have been laudable. This was a horrific spell of history, and justice might have helped reconciliation. Instead, it risks being a travesty. The prosecutions look biased. One defence lawyer talks of a “climate of vendetta” against opponents of the prime minister, Sheikh Hasina. None of the chief perpetrators, Pakistani soldiers, will be in court. Nor will pro-independence militants be charged over smaller but still gruesome massacres of Biharis, migrants who sympathised with Pakistan.

The defendants seem to have been made targets because of their political role today as much as for earlier wrongs. Jamaat is an ally of the main opposition; some of the accused were ministers in Bangladesh's previous government. Should they be convicted and hanged in time for the next election, that would handily weaken the opposition. Yet a nakedly partisan trial would only deepen historical wounds, not salve them.

Outsiders, including the American government who once advised the court, look increasingly wary. Human Rights Watch says that witnesses and lawyers are being harassed, and defence lawyers lack time to prepare. Lawyers are blocked from challenging the judges' impartiality. They say that the tribunal chairman should go, because he presided over an earlier investigation and mock trial in 1994, which condemned the accused as war criminals. They complain, too, that foreign lawyers, in theory allowed in the “international” court, are in effect barred. As a consequence of these problems, says a British lawyer, the trial “lacks even the appearance of independence or impartiality”. Journalists attempting to report as much have been intimidated.

Rule by strongmen, not by law

Asia seems unable to follow Europe, Africa or South America in setting up either strong tribunals or truth commissions, such as South Africa's, to address old horrors. Nor will it deal with recent ones. In Sri Lanka much evidence suggests war crimes against civilians took place in 2009, as the civil war against the brutal Tamil Tigers reached a final climax. On November 20th commissioners who had led a public inquiry into “lessons learnt” from the war handed the government their report. Yet the government refuses an inquiry into those final days. Even raising the matter is risky. A UN report this year on the topic caused a bitter diplomatic row. On November 18th the ex-army chief, Sarath Fonseka, a jailed political rival of the ruling Rajapaksa family, got a new three-year prison term for suggesting that political leaders ordered rebel prisoners to be shot.

Asia pays a price for failing to secure justice over war crimes. Gary Bass of Princeton University argues that well-run trials bring real benefits. They help address “living wounds” that linger for decades after genocides, encouraging reconciliation, for example, by naming individuals, not whole groups, as guilty of particular wicked acts. More generally, they encourage respect for the law and impartial institutions. Sadly, for large parts of Asia with weak democracy and illiberal strongmen in charge, the chances of a fair reckoning for vile crimes are slender indeed.