A Problem From Hell

by Samantha Power

  Long before trials were considered a realistic possibility for Cambodia, the Documentation Center did extraordinary work, identifying some 20,000 mass graves and burial pits throughout the country. Etcheson believes the graves contain at least 1.1 million victims of execution. The center gathered evidence of criminality in the form of official party propaganda, correspondence between KR officers, minutes from KR meetings, “confessions” from victims, and notebooks and personal records kept by KR officials. The documents provide a picture of cadre activity at the region, district, and village levels. The KR, like the Nazis before them and the Iraqis after, were packrats.27 In prosecuting the Nazi henchmen at Nuremberg, Justice Robert Jackson assembled more than 5 million pages of documentation; Chhang suspects that by the time the trials begin in Cambodia, he will be able to supply prosecutors with a similarly sizable bundle. Each KR official, in the interest of demonstrating his loyalty and staying in the good books of his superiors, documented his every movement. “I think they reported back not just every day, but every hour of every day,” marvels Chhang. “They recorded every detail on paper.”

  The documents show that the KR leaders demanded regular secret reports on torture and execution. A September 25, 1976, report back to Nuon Chea, the KR second in command, itemizes the torture carried out against one prisoner, Man San, at Tuol Sleng. First, according to the report, the KR interrogators “tortured him with about 20 to 30 wire lashes” and then moved to a rattan whip. The torturers warned that the prisoner’s family would be killed if he did not confess. “Do you realize that your wife and child are here?” Man San was asked. “Do you know the state of their health?” At 10 p.m., when his torturers prepared to move to their “bare hands,” he confessed. Man San was promptly executed, as were his wife and child.28

  Chhang insists that although Pol Pot’s horrors are widely known in the West, the details contained in these documents will surprise the more than half of Cambodia’s citizens born after Pol Pot’s reign. “To this day most Cambodians know about what Pol Pot did more through an American movie, The Killing Fields, than through anything learned at home,” says Chhang. “They must know more. They want to know more.”

  But establishing the truth was only one purpose behind the documentation. Chhang will be satisfied only if the senior KR officials implicated in the dense paper trail end up behind bars. None of the KR leaders has ever admitted responsibility for atrocities. In a final interview with the Far Eastern Economic Review before he died in 1998, Pol Pot claimed most of the deaths in Cambodia were the responsibility of “Vietnamese agents.” He denied any knowledge of the gruesome torture facility at Tuol Sleng. “I was at the top,” Pol Pot explained. “I made only big decisions on big issues. I want to tell you—Tuol Sleng was a Vietnamese exhibition. A journalist wrote that. People talk about Tuol Sleng, Tuol Sleng, Tuol Sleng. . . . When I first heard about Tuol Sleng it was on the Voice of America.”29 After Pol Pot’s death, people who served beneath him conveniently blamed him for any “excesses.” Meas Muth, a wanted KR military leader, said, “The low ranks had to respect the orders. It was like under Hitler. Hitler asked Goering to kill the Jews. If Goering did not do it, he would have been killed.”30 The KR’s Nuon Chea dismissed the documentary evidence as “fabrications.” Laughing, he asked, “Do I look like a killer?” 31

  Prime Minister Hun Sen first proposed an international court in June 1997. He had just defeated the KR militarily, and with the two ad hoc tribunals plodding along for Yugoslavia and Rwanda and some 2 million deaths as yet unanswered for in Cambodia, hunger for justice was widespread. But after requesting UN help, Hun Sen later resisted international attempts to create a court modeled on the UN Yugoslav and Rwandan tribunals. Judicial independence was not something he wanted Cambodians to begin demanding for themsleves. A former KR cadre himself, Hun Sen wanted to control the legal process. He cited the importance of protecting Cambodia’s sovereignty. After so many years of being trampled by foreign meddlers, he said, his country could not allow itself to be treated like the “guard dog outside the courthouse.” The Cambodian premier was also uneasy about working with the United Nations, which he blamed for isolating his regime and legitimating the Khmer Rouge throughout the 1980s.32

  Hun Sen got much of what he demanded. The UN agreed that a new mixed Cambodian-international tribunal would be seated in Cambodia and not, as was first proposed, in The Hague or the Philippines. Cambodia would retain the authority to limit the number and rank of indictees. Cambodian police had arrested “Duch,” the man who ran the notorious Tuol Sleng prison and effectively headed the secret police, and Ta Mok, a top political and military leader who exercised absolute control over the KR’s southwest zone. But Hun Sen had proven himself unwilling to round up Khieu Samphan, the former head of state, or Ieng Sary, the former foreign minister. The two men lived undisturbed in the northwest province of Pailin, tilling their gardens and enjoying the company of their grandchildren. Even more significant in ensuring Hun Sen’s domination over the court, although foreigners would participate, the majority of judges and prosecutors would be Cambodian. Despite all of these concessions by UN negotiators, Hun Sen eventually decided that even this tame court would intrude too much on his power. The mixed tribunal idea was scrapped, and Hun Sen said Cambodia would carry out its own genocide trials—trials that he would inevitably try to control.

  Iraq

  The Iraqi case has proven even more challenging to international lawyers and justice advocates. In 1997, three years after Human Rights Watch made its unsuccessful bid to see Iraq charged at the ICJ, a governmental and nongovernmental coalition at the British House of Commons launched what it called the INDICT campaign. The INDICT coalition appealed to the UN Security Council to set up yet another ad hoc court modeled on those for Yugoslavia and Rwanda. INDICT urged that this court try members of Saddam Hussein’s Ba’athist regime not only for the “genocidal Anfal campaign against the Kurds” but also for Iraq’s invasion of Iran and Kuwait, its repression and execution of Iraqi citizens, and other crimes. In the Iraqi case, unlike in Cambodia, Rwanda, and eventually Serbia, the same regime that committed the genocide remained in power. Still, advocates hoped to establish an institution whose indictments would at least prevent Iraqi officials from traveling for fear of arrest. Victims could await the day when a successor to Hussein saw fit to turn over suspected Iraqi war criminals to an international body. The Clinton administration and the U.S. Congress were supportive of the initiative. In October 1998 Clinton signed into law the Iraq Liberation Act, section 6 of which called for the establishment of an international tribunal for Iraq. But no concrete steps have yet been taken to establish such a court.

  The International Criminal Court (ICC)

  In the midst of all this activity to prosecute past perpetrators of atrocities in specific national cases, a far more ambitious campaign was under way around the world. One by one, in a fashion reminiscent of the process that had followed the genocide convention’s passage, UN member states had begun submitting their ratifications to the 1998 Rome Treaty, the statute creating a permanent International Criminal Court (ICC) that would try future perpetrators of war crimes, crimes against humanity, and genocide. The international tribunal will be formed when sixty countries ratify the treaty. By November 2001, forty-three had done so, nearly one-third of which were Western European states. The court was thought likely to come into existence by the end of 2002. Despite America’s pivotal support for the ad hoc tribunals and the Cambodia mixed court, the United States opposed the creation of the ICC on the grounds that rogue prosecutors would use it to harass U.S. soldiers. International lawyers and diplomats modified the court’s statute to address U.S. concerns, giving the court jurisdiction only as a last resort. The ICC would step in only if U.S. courts were “unable or unwilling.” But neither the Clinton nor the successor Bush administration deemed the benefits to the United States worth any potential infringement on U.S. sovereignty.

  The Record

>   A Giant Without Arms and Legs

  Before one rushes to support the International Criminal Court, it is worth asking how the Yugoslav and Rwandan UN courts have fared. Since their creation, both have been slammed as “fig leaves” for international apathy. If the Nuremberg court was criticized for being a tool of state power (“victors’ justice”), states seemed all too un-invested in the outcomes of the Hague and Arusha tribunals. The United States and Europe did not initially give the courts the kind of national backing they needed to succeed. Like the UN peacekeepers on the ground in Rwanda and Srebrenica, UN lawyers at the ad hoc tribunals were disappointed by the seeming indifference of the UN member states. They concluded that the major powers were less intent on actually punishing Balkan or Rwandan sinners than they were determined to get the crises out of the headlines. Indeed, while the war in Bosnia progressed from 1993 until the Dayton agreement was signed in November 1995, the Security Council treated the court at The Hague as a nuisance, not as a diplomatic tool. The first president of the tribunal, Antonio Cassese, appeared before the General Assembly around the time of the Dayton agreement and declared, “Our tribunal is like a giant who has no arms and legs. To walk and work he needs artificial limbs. These artificial limbs are the state authorities.”33 U.S. authorities needed to deliver telephone intercepts and satellite snapshots of fields of unarmed men under Serb supervision that turned into piles of freshly turned earth.

  But for the first two years of the UN court’s life, the intelligence was not forthcoming. Cassese clawed for money and personnel, which, with nothing to show for the early money invested, was tough to justify. Every penny had to be raised and therefore pinched. Tribunal investigators had trouble getting access to witnesses and grave sites. Arrests were flukes. The courts got custody of only those suspects who strayed into enemy territory or bumped into jarred survivors while abroad.

  With the deployment of some 60,000 NATO troops in Bosnia from late 1995 on, many hoped that the Hague process would come to bear a keener resemblance to Nuremberg. But NATO’s initial policy of arresting only those war crimes suspects its forces happened to encounter created a surreal situation on the ground: Western reporters could visit alleged culprits as they lounged in local cafes. Unarmed curiosity-seekers could visit the indictees in apartment buildings where their names were emblazoned above their doorbells. And torture survivors watching local television could spot their former assailants at rock concerts sitting alongside state dignitaries. All the while, NATO soldiers steered clear. During the first eighteen months of the NATO deployment, NATO did not arrest a single indictee. Balkan war crimes suspects not only lived freely but also continued to occupy positions of authority, obstructing refugee returns and using the media to continue to demonize their former battlefield foes. “Force protection,” or avoiding casualties, often seemed NATO’s top priority.

  But this policy of nonconfrontation was not cost-free for U.S. policymakers. Human rights groups, op-ed writers, and legislators did not disappear with the signing of the Dayton accords. They hounded the Clinton administration for its “craven” refusal to make arrests. In July 1997 Human Rights Watch, Amnesty International, the International Helsinki Federation, and the Coalition for International Justice, another nongovernmental group funded by philanthropist George Soros, published a full list of the indictees. In their joint Arrest Now! campaign, the human rights advocates listed the suspects’ home and work addresses, as well as the places they liked to drink coffee, take walks, or work out. They also included information on the number and nationality of NATO forces nearby. U.S. and NATO officials were humiliated.

  Senator Jesse Helms (R.–N.C.), the chairman of the Senate Foreign Relations Committee, compounded the embarrassment by sending a mocking letter to Secretary Albright after the State Department issued a $5 million reward for information leading to the arrest of the leading Serb culprits. “I have the information that you are looking for,” Helms wrote:

  Mr. Milosevic and Mr. Mladic both are residing in Belgrade. Mr. Milosevic recently laid a wreath at the Grave of the Unknown Soldier on Mount Avala (to mark the first anniversary of the NATO bombing of Serbia). His address is: Presidential Palace, 15 Uzicka Street, Dedinje district, Belgrade.

  Mr. Mladic is apparently unaware that he should be in hiding—he took a leisurely afternoon stroll down Knez Mihailova Street on Friday, March 24, waving at Belgraders as he walked along, and was spotted just this weekend at the Belgrade stadium taking in a soccer match.

  Mr. Karadzic remains in the Pale area of Bosnia—living in the midst of thousands of NATO peacekeepers—where he has been seen regularly in public in recent months.

  Reward payment should be made to Rev. Franklin Graham’s Samaritan’s Purse, a well-known and highly respected charitable organization in North Carolina (Franklin is Billy Graham’s son).

  Kindest regards.

  Sincerely,

  Jesse Helms34

  A change in NATO policy was catalyzed by this negative publicity, by the internal advocacy of U.S. officials like Madeleine Albright, by the election of the liberal internationalist Tony Blair as British prime minister, and by the recognition that NATO troops would never be able to leave the Balkans if war criminals continued to run the local show.

  In July 1997, on Blair’s initiative, NATO made its first arrest. British troops snatched a pair of Serb concentration camp guards near their former stomping ground in Prijedor, northern Bosnia, fatally shooting one. The Serbs staged a few scattered protests, but they blew mainly hot air. With the myth of Serb solidarity again exposed, the major powers began sending a steady trickle of culprits to The Hague. The roll call in the detention unit swelled. In addition, Bosnia’s local authorities began themselves detaining the suspects, hoping to earn foreign aid or to score political points at home in the process. Because NATO’s threat of arrests had at last been made credible by actual round-ups, some suspects turned themselves in, preferring life in a European prison to life on the run.

  Each time the UN court at The Hague seemed on the verge of sagging into extinction, it received an injection of cash, criminals, or credibility. In 1996, when it needed to gain custody of a war crimes suspect in order to stage a trial, Dusan Tadic, a Bosnian Serb camp guard, strolled into a German bar, where he was recognized by one of his victims. In the summer of 1997, when the tribunal was inundated by shrill complaints about Serb killers waltzing through NATO checkpoints, British troops staged their Prijedor raid. In the fall of 1997, when the court was criticized as biased against Serbs, Western diplomats squeezed Croatia to turn over Bosnian Croat commander Tihomir Blaskic and ten more Croat suspects. In 1999, after six years of escaping indictment, Serbian president Milosevic presided over the commission of atrocities in Kosovo, a province in his own republic. This enabled the Hague prosecutor to establish a much clearer chain of command and to indict him publicly with crimes against humanity and war crimes, the first step in the two-year process that eventually landed him in UN custody.

  The Hague court has grown beyond anybody’s expectation. The very same institution that had a budget of $11 million in 1994, spent more than $96 million in 2000. The detention center initially housed only the relatively low-ranking Tadic; by November 2001 it held forty-eight inmates. And the one-person staff that originally consisted of only deputy prosecutor Graham Blewitt topped 1,000 in 2001, including some 300 on the prosecutor’s staff. A court that once occupied a few rooms of the Dorint Insurance building was bursting at the seams of the sprawling complex and on the verge of annexing additional neighborhood property. With three functional courtrooms, a visitor to the Krstic trial could also hear the concentration camp guards from Omarska testifying in their own defense or listen to the wrenching reminiscences of an elderly Muslim woman testifying about the massacre of her family. After a slow start, the Clinton administration played a key role in helping the institution grow. During Clinton’s second term, the United States provided the tribunal with more financial support than any othe
r country, as well as senior personnel. Most significant, the United States turned over technical and photographic intelligence that greatly facilitated trials like that of General Krstic. Of course, Clinton also left office while the Bosnian war’s three leading men, Mladic, Karadzic, and Milosevic, remained at large.

  When it came to rounding up top suspects, the UN court for Rwanda was more successful than its better-publicized and better-resourced counterpart at The Hague. In Bosnia, because the gains of ethnic cleansing were preserved in the Dayton deal, suspected war criminals were able to take shelter, and even prosper, in territory that after the war continued to be controlled by their ethnic group. In Rwanda, by contrast, the ethnic Tutsi who began governing the country after the genocide threatened to arrest and execute killers who dared return. Most of the genocide suspects thus fled to neighboring African countries, where they were apprehended and extradited to the UN court in Arusha. The fifty-three held in custody at the Arusha detention center included many of the highest-ranking officials of the Hutu-controlled government and key planners and inciters of the genocide, including not only ringleader Colonel Bagosora, but the prime minister, the director of Radio Mille Collines, and the leaders of the various machete-wielding militias.

  Despite its impressive record of locking up the once-fearsome génocidaire, however, the court has struggled. Early on, lawyers and judges were hampered by intermittent phone service, the absence of internet access, and scant research support, so that the prosecution staff often could not communicate with investigators in the field. But even after the logistic headaches eased, the court was plagued by corruption, nepotism, and mismanagement. Squirreled away in east-central Africa in a jumping-off spot for safaris and trips to nearby Mount Kilimanjaro, many staff members lazed about Arusha on cushy UN salaries. The court was so dysfunctional that a few of the early court reporters were found unable to type.