News came from Phnom Penh this morning that the hybrid Cambodian-UN tribunal had convicted the two most senior surviving officials of the Khmer Rouge regime of crimes against humanity.* The ECCC Trial Chamber judges handed down sentences of life imprisonment to both Nuon Chea, Pol Pot’s Brother Number Two and the Deputy Secretary of the Communist Party of Kampuchea, and Khieu Samphan, former President of the state of Democratic Kampuchea.

These convictions are the ECCC’s first since Case 001 in July 2010 against Kaing Guek Eav, or Comrade Duch, whose role as the chief of the Khmer Rouge regime’s principal security centre was examined by the Trial Chamber. Duch too was eventually sentenced to life imprisonment for his part in the torture and murder of more than 12,000 victims deemed enemies of the revolution.

The trial of Nuon Chea and Khieu Samphan, Case 002/01, lasted 222 days, during which the court heard testimonies from nearly one hundred individuals, including witnesses, Civil Parties and experts.

Yet this so-called ‘mini’ trial represented only a small fraction of the initial investigation, evidence and charges against the ‘senior leaders and others most responsible’ for the crimes of the regime.  In September 2011, the ECCC’s Trial Chamber decided to sever the global case against the surviving senior leaders into a series of smaller trials. Today’s verdict only focuses on the specific allegations examined in Case 002/01, namely crimes against humanity related to the forced movement of the population from Phnom Penh and other regions, and execution of Khmer Republic soldiers immediately after the Khmer Rouge takeover in 1975.

Case 002/02 will be heard in a second trial for Nuon Chea and Khieu Samphan, scheduled to commence in the coming months. This subsequent case represents the central core of the allegations historically levelled at the Khmer Rouge leadership: genocide of Cham Muslims and the Vietnamese; appalling treatment of Buddhists; nationwide forced marriages and rape; internal purges and political persecution of enemies; the network of torture and execution centres; and the worksites in which civilians were enslaved and worked to death.

Whether Nuon Chea and Khieu Samphan will survive long enough to hear the evidence and participate in Case 002/02, let alone to allow the Trial Chamber to deliberate and pronounce their second verdict, is highly questionable. Yet the 88- and 83-year-old accused have at least lived long enough to hear the judgment of an internationalised criminal tribunal: that their actions as leaders of a sovereign nation against their own population were beyond reasonable doubt criminal, based on the testimony of Cambodian victims and witnesses and international experts alike.

The initial reactions in online comments to the verdict from Western Media sources rehearsed the already well-worn criticisms of excessive delay, unconscionable expense and ultimate futility of prosecuting octogenarians to be sentenced to derisory punishment.

I’ve been familiar with these arguments against historic prosecutions ever since I began my career as an international criminal lawyer, and they’re not easy to respond to. 35 years after the Khmer Rouge were driven from Phnom Penh, saying that these convictions represent a ‘symbolic victory for accountability’ and are another ‘important milestone in the development of international criminal justice’ (as I think I might have said in the past) are well and good as a rational lawyer’s response, but those most affected by what happened are often far better placed to comment on the (f)utility of the trial process for Cambodia and what it means for their everyday life and identity as Cambodians.

I returned to Phnom Penh in March this year for the first time in nearly four years, this time around working with a transitional justice project for Queens University Belfast. In the years since I left the Office of the Co-Prosecutors and the Duch trial, I admit I became increasingly disappointed with the slow pace of justice at the ECCC, and disillusioned by the persistent and corrosive allegations of corruption and political interference, not to mention the corresponding impunity with which the current Cambodian government continued to treat their citizens.

Not by nature a cynic, I returned to Cambodia in 2014 nevertheless in a much more muted frame of mind on the usefulness and relevance of the ECCC. But after a week of observing several dozen interviews with Khmer Rouge survivors, Cambodian lawyers, ECCC personnel and civil society, and discussing the issues with QUB’s transitional justice experts Kieran McEvoy and Louise Mallinder, I was left feeling more at ease with the complexity of international criminal justice. I was also left more affected by the differing emotions of ordinary Cambodians. I had of course known that some victims were relieved to have their suffering acknowledged in public, that others felt deeply let down by the court’s failure to prosecute more people or to hold the government to account, and even some who were indifferent to the entire process. But to hear that expressed, face to face, left a lasting impression.

We have a tendency to seek simple explanations of large-scale human suffering. How else to comprehend the motivation, scale and impact of widespread and systematic criminality without making generalisations? Certainly, the black-letter law constrains those operating in the courtroom to fixed theories proved or otherwise by a preponderance of evidence. The politics of international criminal justice is itself prone to reductionism: the supporters and detractors of selective and often delayed-by-a-generation prosecution of ‘those most responsible’ for international crimes seldom admit any merit in the arguments of their opponents.

Having revisited Cambodia and considered these issues with the perspective of time and distance, I’m inclined more than ever to think that prosecutions for international crimes are inevitably messy and inconveniently incapable of being reduced to a simple ‘yes, they’re a good thing’ or ‘no, they’re a waste of time.’ Having been a prosecutor I am naturally supportive of the process of international criminal justice, but I now feel the need to temper this binary appreciation with what I see is the multiple complex realities for victims who continue to live in the affected society.

Youk Chhang, director of the Documentation Center of Cambodia, recently referred to the difference between what he called legal justification and human instinct. The former relates to being not guilty until proven otherwise, the black letter law. The latter, so much in evidence in the reactions of the survivors, is something undoubtedly part of how the world should view prosecutions of international crimes. To put it differently, the formal legal conviction of Nuon Chea and Khieu Samphan is just one (albeit extremely important) aspect of the post-Khmer Rouge environment. Transitional justice also requires the sense that the people have been able to tell their stories, whether they support the process or not.

For any transition to truly occur however, the people have to feel that the country is not only capable of moving on from the events, but that it has taken steps towards a fairer and more just society in which the crimes are less likely to re-occur. Although it would be a real disappointment to many if Nuon Chea and Khieu Samphan do not live to hear the evidence in Case 002/02 and any subsequent judgment on whether genocide and systematic persecution is legally proven, it is a far greater loss if Cambodians in 2014 do not feel confident that their country has made significant progress towards tolerance, equality of opportunity and the enjoyment of basic human rights.

As one of the original team of prosecutors who had helped to investigate the crimes and draft the initial request for the Co-Investigating judges to open the case back in 2007, it is some satisfaction to hear that the tribunal has been able to reach a verdict on two of the senior leaders of the Khmer Rouge. However, after my March 2014 visit to Phnom Penh in the wake of the violent government crackdown on opposition protesters and striking garment workers, and speaking to prominent (and peaceful) civil society representatives, I was left with the distinct impression there can be no confidence at all in the current Cambodian administration’s ability to act with fairness and equality towards its citizens.

Trial Chamber President Nil Nonn in his remarks to the court today said the Khmer Rouge regime left people living in “a state of terror…unwilling to question orders.” The current Cambodian administration, under the premiership of ex-Khmer Rouge cadre Hun Sen, portrays itself as a modern democracy with a vibrant economy. State of terror it may not be, but there are many thousands of Cambodians who live in a state of fear, particularly those who question the orders of the rich and the powerful or who seek to pursue legitimate political opposition.

The symbolism of Nuon Chea and Khieu Samphan’s convictions is not just confined to international criminal justice: there is a resonance with the current dire state of human rights in modern-day Cambodia.

*For more details of today’s verdict, see http://www.eccc.gov.kh/en/articles/nuon-chea-and-khieu-samphan-sentenced-life-imprisonment-crimes-against-humanity

Some years ago, whilst working as a prosecutor at the Extraordinary Chambers in the Courts of Cambodia, I appeared on a Cambodian radio phone-in programme to take questions from listeners about the court. One particular caller sticks in my mind. I was asked what would happen if a convicted accused died in custody before serving his sentence. Could the bones of the deceased be kept in chains in the prison, only to be released to his relatives at the end of the expiry of the jail term?

At that time, I had already lived in Phnom Penh for over eighteen months. I was well aware of the significance in Cambodian Buddhist culture of a proper funeral. The body would be brought back to the family home, where monks would offer prayers for the first few hours after sunrise each day for several days. Subsequent ceremonies were spread over several weeks and months. A failure to observe these rituals would be unthinkable, as it would not only bring shame on the surviving family but would not augur well for the deceased in the next life.

The caller’s point was obvious. Those convicted of Khmer Rouge era atrocities that died before condign punishment had been served should forfeit the right to a proper and timely burial.

Ieng Sary, former Foreign Minister and member of the Standing Committee of the Communist Party of Kampuchea in Democratic Kampuchea from 1975-1979 (better known as the Khmer Rouge regime) died aged 87 on 14 March 2013. He was a little over eighteen months into his public trial at the ECCC, where he was facing charges of genocide, crimes against humanity and war crimes.

Case 002, as it is known, is the centrepiece of the ECCC’s work: the largest trial against the most senior remaining figures of the Khmer Rouge. The trouble is, with Ieng Sary now dead and his wife Ieng Thirith last year having been adjudged mentally unfit to stand trial through dementia, the only surviving defendants in the dock are Nuon Chea, former Deputy Secretary of the CPK, and Khieu Samphan, former DK Head of State. Aged 86 and 82 respectively, their own grip on mortality is tenuous.

Yesterday, at a press conference, the Co-Prosecutors offered the consolation that they believed the end of the trial was only four months away. International Deputy Co-Prosecutor Bill Smith rejected a suggestion that the OCP had overreached itself when submitting the accused should be indicted for more charges than was safe given their age. Smith conceded that it was always a gamble when prosecuting accused of this age that they would die before the process had run its course. Nevertheless, limiting the trial to a single crime site to achieve a quick trial would he said have been unlikely to have satisfied the public. So far so good.

I was not convinced by his follow-up argument, however (apologies if you’re reading this, Bill…). To paraphrase the Deputy Co-Prosecutor’s words, whether we reach the end before an accused dies in some cases may be less important than the fact of holding of a proper process adjudicating allegations against them. Reading through the comments on the website of the Documentation Centre of Cambodia (The People’s Reactions on Ieng Sary’s Death) it’s unlikely that many Cambodians share Smith’s view. ‘It is an insult to justice that Ieng Sary died while the trials are still ongoing. Due to its lack of independence the ECCC is extremely slow and reluctant try more individuals’ said one – these comments were entirely typical.

Less plausibly still however, Smith also made the point that people should focus on the ECCC’s legacy, or as he put it, on the fact that the court process marked the end of impunity in Cambodia for people in power who commit crimes against the people: no matter how old you are, you’re never too old to face justice. Unfortunately, the most relevant (and unpleasant) fact relating to impunity today is that powerful and influential people accused of crimes still buy off the judges to escape justice. The (non) functioning of Cambodia’s modern-day justice system makes a mockery of the claim that the ECCC has brought the end of impunity for the powerful.

The limited ‘end of impunity’ we all believed in (to a greater or lesser extent) when we started work at the ECCC in 2006 related to the belief that ‘some justice is better than none’ for the victims of the Khmer Rouge. Yet as the years have gone by, the inherent weaknesses of the hybrid system have been exposed and the Government’s obstructions to further investigations have prevailed. Not only does it seem that the expensive international experiment is failing as an exemplar to domestic courts for modern-day crimes, even the narrow sense of a symbolic victory over impunity for DK crimes is fading as fast as the life in the remaining defendants.

The failure to bring the accused to justice before their demise cannot of course be laid wholly (or even mostly) at the door of the ECCC. As Bill Smith reminded everyone yesterday, the suspects (as they then were) were delivered to the custody of the hybrid tribunal at an already advanced age and state of considerable ill health. The failures of diplomacy in the 1990s and early 2000s to expedite the creation of the court are partly to blame for this. As are the failures of Cold War politics in the 1980s (and, arguably, the underdeveloped state of international criminal law at the time), when the West’s antipathy towards the Vietnamese-backed post-Khmer Rouge government in Phnom Penh prevented any attempt to seek the arrest and trial of the main suspects when they were in middle age and of sound health.

On 19, August 1979 the Vietnamese PRK Revolutionary Tribunal convicted Ieng Sary in his absence of genocide and sentenced him to death. The trial bore none of the recognised hallmarks of due process and is widely recognised as a sham. It is a great pity – but no great surprise – that history will record this to be the only completed judicial process against him.

Brad Adam of Human Rights Watch has recently argued that there are real questions about the purpose of continuing international UN involvement and donor support for the ECCC. To use Ieng Sary’s death as a reason for the UN to pull out now would add gross insult to grave injury – but the damage to the process was already done in the decades after the Khmer Rouge were driven from power. The shame is that no one acted to bring justice to Cambodia sooner.

With every fresh setback the ECCC faces, the best that one can hope for is that the lessons learned from the entire project do not go unnoticed, and the compound failings over three decades are not re-made in the future of international criminal law.

Yesterday, the Documentation Centre of Cambodia’s website published photographs of the family house and the freshly-swept yard surrounded by frangipani trees to where Ieng Sary’s mortal remains were to be brought. His bones would be unchained at his own funeral. As one DC-Cam interviewee put it, ‘Ieng Sary's death is a loss for the Khmer Rouge tribunal since they were not able to deliver a final judgment on him. His death will be buried alongside the justice that people have waited so long for.’  However extreme such a reaction may sound, the sentiment is a wholly understandable one.

On 16 November 2012 the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia reversed the convictions for war crimes and crimes against humanity previously entered by the Trial Chamber against the two most senior Croats accused by the tribunal. General Ante Gotovina and Assistant Minister of the Interior Mladen Markač were subsequently released and returned as free men to Croatia.

The acquittals not only prompted diametrically opposed reactions across the Balkans, they also bitterly divided legal opinion within the tribunal itself.

The acquittals were confirmed by a narrow three to two majority in the Appeals Chamber, with Judges Pocar and Agius issuing dissenting judgments laced with contempt for the reasoning of their three colleagues who overturned the original convictions entered by the Trial Chamber.

Ever since the tribunal began handing down its first judgments on the major belligerent ethnicities (simplistically speaking: Bosnian, Croat, Kosovar Albanian and Serb), reactions to the results have always been polarised along ethnic lines. It is nothing new for an acquittal of Croatian accused to be hailed in Zagreb whilst condemned in Belgrade.

The difference in the case of Gotovina and Markač is that the acquittals mean, as Tim Judah recently wrote, that no Croats from Croatia (as opposed to Croats from Bosnia-Hercegovina) have been convicted by the ICTY throughout its nineteen year existence. Judah neatly summarises that the judgment “vindicates [Croats’] belief that their generals are heroes and not war criminals; and … consolidates [Serbs’] deeply held belief that the tribunal is a kangaroo court, whose main aim was to vilify and convict Serbs.”

Within hours, the ‘losing’ side was delivering its familiar rhetoric: Serbia's President Tomislav Nikolic damned the judgment as ‘political’, adding that it ‘will open old wounds’. Other senior Serbian politicians protested that the ICTY had ‘lost all its credibility’ and was ‘proof of selective justice which is worse than any injustice.’ Vladimir Vukčević, Serbia’s Chief Prosecutor for War Crimes, called the decision ‘scandalous’.

Such comments were very similar in tone to the original reactions from Croatia’s leaders following Gotovina and Markač’s original convictions by the Trial Chamber in May 2011. This time around, the comments from Zagreb’s leaders were a little more measured, although the tens of thousands that welcomed the acquitted pair on their return were jubilant.

The acquittals will obviously not improve Belgrade’s opinion of ‘The Hague Tribunal’ – but that is to be expected. The political legacy of the ICTY within the Balkans was never going to be straightforward; the regional divisions are simply too deep and entrenched for even a lavishly funded judicial exercise to have had much impact alone, although it remains one of my personal bugbears that too much is expected of international tribunals. In the first instance, let the judges get on with the essentially retributive process of adjudicating the guilt or innocence of the accused, rather than burdening them with functions of capacity building, peace and reconciliation or reparations. Rather more important to the political situation is the continued international support for domestic initiatives, including local efforts to prosecute middle and lower ranking accused within the region (for example through initiatives such as the War Crimes Justice Project).

Notwithstanding Serbia’s predictable response to the acquittals, the more serious challenge to the legacy of the ICTY comes from the scathing dissent from the minority of the Appeals Chamber itself.

The legal dispute in the Appeals Chamber centred upon three main questions in relation to the Croatian military attacks in 1995 on four towns in the self-proclaimed Serb entity of Krajina within Croatia:

(1) What evidence is required to prove the existence of unlawful artillery attacks (in this case using allegedly imprecise missiles that failed the test of distinguishing civilian from military targets)?

(2) What evidence is required to prove the existence of a joint criminal enterprise (JCE) (which in this case was said to be the permanent removal of the Serb civilian population from Krajina by force or threat of force, including through persecution, murder and inhumane acts, plunder of property, wanton destruction and cruel treatment)?

(3) What power does the Appeals Chamber have to enter convictions under alternate modes of liability where it is overturning the Trial Chamber’s convictions under the principal charges?

There is a good deal of jurisprudence on each question, and none of them is especially novel – although I’ll leave it to others to expand on the legal principle. Rather, my focus is on the vehemence with which the minority so caustically disagreed with the majority.

It is relatively common for judges to disagree – usually on the interpretation of a point of legal principle. But it is unheard of for judges to so utterly damn their colleagues.

The tone adopted by Judges Pocar and Agius in their dissenting judgments to describe the reasoning of the majority is astonishing: ‘artificial and defective’, ‘confusing and extremely problematic’, ‘disturbing’, ‘extraordinary’, ‘completely unjustified’, ‘untenable’, ‘unwarranted and petty’, ‘wholly erroneous’, ‘negligent’ and ‘simply grotesque.’ Judge Pocar concluded with the vitriolic comment ‘I fundamentally dissent from the entire Appeal Judgment, which contradicts any sense of justice.’

In short, this was some dissent: unparalleled in the tribunal’s history, perhaps in modern international criminal jurisprudence.

For Gotovina and Markač their acquittal is final. On one view, a judgment is still a judgment whether carried unanimously or by a majority. In this case, the Pocar/Agius dissent was so vigorous as to strip the majority judgment of virtually all authority. And in such an important and sensitive case, the tenor of the dissent has called into serious question the credibility of the ICTY’s judges and their judicial competence.

If the majority’s judgment was not based on a correct reading of the law, there will be many critics of the tribunal who will demand to know precisely what it was based on, and will speculate upon all manner of conspiracies. Was it a political decision – something to do with Croatia’s membership of the EU, perhaps? Or was it another example of the tribunal’s ‘anti-Serb’ bias? Of course, there is clear jurisprudence establishing that judges presumptively discharge their functions competently and independently, in the absence of evidence to the contrary. Judges Pocar and Agius alleged ‘negligence’ rather than bad faith. But these distinctions may be too nice for some of the affected people in the Balkans, and it is a great pity that the dissent should come so close to the end of the ICTY’s mandate, and in such a high-profile case.

For the international criminal lawyer, it is perhaps more dispiriting to read Judge Pocar’s comments that the ‘paucity of [the majority’s] legal analysis…does not leave a good legacy in terms of respecting IHL [International Humanitarian Law] principles.’ 

Last Saturday at the Royal York Hotel I presented a powerpoint on the topic of working at a United Nations war crimes tribunal, using Kosovo and Cambodia as examples, sharing the task with Judge Tim Clayson, Presiding Circuit Judge at Bolton Crown Court and former International Judge of the Supreme Court of Kosovo. Also on the bill were other judges and lawyers who had worked abroad in similar capacities.
The audience comprised about 50 barristers who practice on the North Eastern Circuit.
The powerpoint is available to view / download here, and a blog review of the day from a barrister who attended is available here. 

Several weeks of research, a day or so trawling through my back-catalogue of black-and-white images and the last two days putting together the new website, I'm now ready to launch.

My idea behind batesmith law and the batesmith law blog is to provide a focus for my ever-expanding international consulting practice, which over the last three years has seen me in such disparate places as Tashkent, Freetown, Beirut, Pristina, Ottawa, The Hague, Zagreb, Lisbon, Warsaw, Zurich Airport (more times than I'd care to remember), Lancaster...and many more places in between.

I would also like to share some thoughts on the inter-linked worlds of international criminal law, transitional justice and human rights, and will also post links to articles I have found interesting or events within these fields that might be of interest.

I'll start off very briefly by musing how international criminal law may have developed very differently (or may not have developed at all?) had the senior Nazis been summarily executed at the end of World War II rather than being put on trial at Nuremberg. An article appearing in today's Guardian newspaper describes how the British favoured hanging Goering et al, and felt that the proposal advanced by the Americans and the Russians to put the Nazis on trial was 'quite dreadful' to use the words written by Guy Liddell, head of counter-espionage at MI5, in his now-declassified diary of 21 June 1945. Liddell believed that the prosecutions would be no better than the Stalin-era show trials - in fact, Stalin himself seems to have believed that the Nazi prosecutions would have 'excellent propaganda value.' 

The argument over whether Nuremberg's IMT was victor's justice has long since gone stale (so I won't rehearse it here), and we all knew that Churchill was not in favour of a tribunal (see for example the excellent description of this in Gary Jonathan Bass's Stay the Hand of Vengeance: The Politics of War Crimes Tribunals), but it's worth bearing in mind that holding up Nuremberg as a flawless paradigm rightly championed by the free world is not an accurate historical (or legal) portrayal.

Rather, the creation, functioning and legacy of the International Military Tribunal, as with each of the subsequent steps taken in the development of international criminal law, should be seen as more nuanced, complex and at times controversial than we sometimes allow for.

Is the world a better place because Roosevelt and Stalin outvoted Churchill at Yalta in February 1945? Unquestionably. However flawed the Nuremberg model was, however imperfect the subsequent iterations of international criminal justice have been, the recognition at the IMT of individual criminal responsibility for atrocities committed on behalf of States was an unarguable milestone. No longer could leaders perpetrating egregious crimes against humanity evade personal prosecution and conviction by claiming act of State. Even the decision to commit such serious crimes is taken by human beings: and it is they who should be held accountable.

The development of international criminal law is far from complete. Respect for it is far from universal. Practice  of it is far from uniform. But without the work of the tribunals, from Nuremberg to the ICC and beyond, there would be more impunity. 

The more difficult question to answer, however, is how far selective prosecutions (and no-one could seriously argue that the ICC's prosecutions are significantly representative of all the international crimes committed in the world since 2002) are a necessary evil in the development of international criminal law, or how far they will ultimately contribute to the disintegration of this nascent legal system....

...which might be a good cliff-hanger to end on. To be continued at some later stage.