Can justice go global?
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5 November 2013
The farcical show trial of Pol Pot only serves as a reminder of the unsatisfactory nature of international criminal law. Andrea Dahlberg examines the problem. Andrea Dahlberg is a solicitor at Simmons & Simmons.
A frail old man with a walking stick, a crowd in a jungle clearing - this was the trial of Pol Pot, as filmed by an American journalist recently. After a series of denunciations before a crowd whose reactions appeared choreographed it resulted in a life sentence for, "destroying national reconciliation" and misappropriating the funds of the Khmer Rouge.
It could hardly be called a trial at all. It was carried out by the Khmer Rouge and in secret, without the presence of observers to scrutinise the law and rules of evidence and procedure applied. The trial of one of the greatest violators of human rights this century was, in reality, only a show trial.
Pol Pot led the Khmer Rouge for almost 40 years and is believed to be responsible for the deaths of between two and four million Cambodians. All this occurred during the 44-month period of his rule from 1975 to 1978. Up to one quarter of the country's population died as a result of the Khmer Rouge's attempts to forcibly construct an idyllic agrarian society by the rigid application of Maoist principles. The urban population was forced into rural communes, whole cities were evacuated and millions of people died in what became known as "the killing fields".
But the trial itself is important because it reveals so much of what is unsatisfactory in international criminal law.
Human rights groups and journalists are calling for Pol Pot to be brought before an international court or tribunal to be tried for crimes against humanity and genocide. The single journalist who witnessed his trial actually asked if the Khmer Rouge would hand him over to an international body for trial and was told this would not happen. But presently there is no international court of tribunal which could try him. The ad hoc tribunals established by the UN Security Council for the former Yugoslavia and Rwanda have limited jurisdiction and can only try those accused of certain crimes within those territories. A new tribunal would have to be established just to try Pol Pot.
The only alternative would be for Pol Pot to be tried by a state under its own laws, regardless of whether or not that state has or had any connection with Pol Pot, his victims or his country.
Under international law, a state is entitled to exercise universal jurisdiction in relation to genocide but it could only do this to the extent that the applicable international law was incorporated into its national legal system, and to the extent of its incorporation. Further, all these possibilities depend on sufficient political will being available at the present time.
We therefore have a situation where one of the most infamous violators of human rights has been subject to an unsatisfactory national trial but where there is no immediately available international forum in which to try him. And this despite the fact that the Khmer Rouge was notoriously efficient in documenting the full extent of their brutality. A real trial of Pol Pot would not lack evidence.
Until a permanent international criminal court is established this state of affairs will continue. People such as Pol Pot will, at best, be tried in the national forums. In these circumstances the national forums should be regarded as organs of the international community applying international law to specific individuals. But the fact that this did not happen even in the trial of Pol Pot shows how rare this is.
A further problem exemplified in the trial of Pol Pot is that he was not charged with genocide or crimes against humanity. The whole legal concept of international crimes is questionable as long as there is no international criminal court to try individuals. At present it is not even possible to distinguish between international criminal offences which arise a result of individuals breaching international duties and those which arise as a result of individuals breaching an obligation contained in an international treaty to which the state in which he resides is a party.
It is a truism that states are motivated by self-interest but in the post-Cold War era they are beginning to realise that it is in their own interest to establish viable international criminal law and adequate adjudicatory institutions.
Thus we have seen the Security Council establish the ad hoc tribunals for the former Yugoslavia and Rwanda and Kofi Annan, the UN Secretary General, promise the establishment of a permanent international criminal court next year on the 50th anniversary of the Genocide Convention.