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May
23, 2003
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Schaefer
Lifting the Sanctions: Who Benefits?
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Long Live People's Park!
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Greger, MD
Return of Mad Cow: US Beef Supply
at Risk
Elaine
Cassel
Tigar to Ashcroft: "Secrecy is the Enemy of Democratic Govt."
Sam
Hamod
The Shi'a of Iraq
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Greeder
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Cockburn
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May
22, 2003
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Gaffney
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Estabrook
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Camacho, Jr.
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Granby
What Rates a Headline from the Middle
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Jones
Terror Alerts in Australia
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Z.
Instant Understanding
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Snowballs in a Soggy Economy
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The Nether-Nether World of G.W. Bush
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Total Information
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May
21, 2003
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Lindorff
Ari Fleischer Quits the Scene: The
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Floyd
How Blood Money Becomes Business Opportunity
Dr. Gerry
Lower
Graham's God and Bush's Pathology
Patrick
Cockburn
In Post War Iraq, the Signs of Breakdown
are Everywhere
Brian Cloughley
The Fatuous Braintrust: Newt, Rummy and Wolfowitz
Saul
Landau
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Larry Kearney
Two Morning Poems, May 2003
Steve
Perry
Chaos in Iraq: Just What the US Wanted?
Elaine
Cassel
Ashcroft Justice Comes to Iraq
May
20, 2003
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Ali
The Empire Advances
Ahmad
Faruqui
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Dialysis with Osama
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Heard
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Cynthia
McKinney
Toward a Just and Peaceful World
Edward
Said
The Arab Condition
Mokhiber
and Weissman
Why Ari Should Have Resigned in Protest Long Ago
Stew
Albert
Yale Men
Steve Perry
The New Face of Al-Qaeda
May
19, 2003
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A Letter to Kofi Annan on Powell's Missing
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CounterPunch
Wire
"Terror" Slut Steve Emerson
Eats Crow
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Chuckman
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Vidal
Corporate Media and the Myth of the Free Market
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S. Ladah
The Fine Print to Bush's Road Map
Robert
Fisk
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Cassel
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Freedland
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Play It Again, O-Sam-a
May
17 / 18, 2003
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Linebaugh
An American Tribute to Christopher
Hill
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Leupp
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Condy Rice's Yipping Tirades
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Dubya Does Indy
Tarif Abboushi
Bush, Sharon and the Roadmap
Francis
Boyle
Debating US War Crimes in Iraq
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An Interview with Richard Butler
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Lichtman
American Mourning
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Ortiz Hill
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Engel
Uncle Sam is YOU!
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The Best News Show on TV
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the Weekend
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May
16, 2003
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Wells
In Iraq Water and Oil Do Mix
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Smith
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Those Who Don't Count
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Bush's Little
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May
24, 2003
Slowly Sowing Justice
in the Killing Fields
a
Problematic Tribunal for Cambodia has Lessons for Post-Saddam
Iraq
By NOAH LEAVITT
On May 20, Cambodians marked the anniversary of
the day in 1973 when the Khmer Rouge began their drive to remake
Cambodian society by recalling family members and friends who
were killed during this Maoist-inspired agrarian revolution.
On the same day but halfway around the
world, recently discovered mass graves hinted at what the world
will learn about Saddam's violent rule. Evidence like this makes
all the more pressing an important question: What kind of tribunal
should judge the crimes of Hussein and his henchmen?
Though the media has virtually ignored
it, the "grandfather" of modern human rights tribunals
is moving closer to becoming a reality. Two weeks ago, the United
Nations General Assembly approved a process, more than five years
in the making, for trying some of the members of the Khmer Rouge
who devastated Cambodia in the 1970s.
At first, this sounds like good news.
Yet respected groups like Amnesty International and Human Rights
Watch almost unanimously condemn the agreement. Strikingly, some
organizations have even stated that they would prefer that it
had failed altogether.
As I explain below, the truths of history
and the dreams of justice have clashed in Cambodia. After twenty-five
years, Cambodians may only be even further away from seeing their
aging tormentors brought to accountability. And the U.S., troublingly,
aided in developing this controversial and potentially ineffective
model of international justice.
What lessons may be derived from Cambodia's
experience to avoid repeating the same mistakes in Iraq?
The U.S.'s Role in
Destabilizing Cambodia
In Cambodia, as many argue was the case
in Iraq, the U.S. aided in creating the conditions that led to
massive human rights violations.
In 1969, President Nixon, as part of
his covert "madman" foreign policy strategy, ordered
a secret worldwide nuclear alert to terrify the Soviets into
forcing concessions in Southeast Asia. (At that time, nuclear
warheads were the only weapons of mass destruction that could
inspire a fear great enough to function as diplomatic leverage.)
As part of the same strategy, he secretly began bombing Cambodia.
The thousands of sorties radically destabilized
the small country. The ensuing chaos helped create the vulnerable
conditions that Pol Pot's Khmer Rouge forces exploited to take
power and impose their harsh rule.
The Khmer Rouge's
Reign
Between 1975 and 1979, close to two million
Cambodians, out of a population of approximately seven million,
died from execution, starvation, and disease. When the Vietnamese
gained control of Cambodia in 1979, ending the Khmer Rouge's
reign, they found countless skeletons scattered around the country's
killing fields.
That brief period is considered to have
given rise to one of the most devastating human rights horrors
of the bloody 20th century. Accordingly, discussions about trying
the Khmer Rouge leaders subsequently began around the world.
Such a tribunal could have been the first
since those convened at Nuremberg and Tokyo. But it didn't happen
that way. Instead, justice has been very slow in coming.
Since the idea of a court for Cambodia
was first proposed, the world has seen international tribunals
take shape for crimes in Yugoslavia and Rwanda, Sierra Leone,
Kosovo and East Timor. We have also seen the rise of the International
Criminal Court. Yet no Cambodia tribunal exists--and as noted
above, the agreement for one has come under heavy criticism from
human rights groups. Why?
U.S. Support for the
Khmer Rouge And A Ruined Judiciary Undermine Tribunal Hopes
After Vietnam's takeover of Cambodia,
the U.S. and China led the way in recognizing the Khmer Rouge
as Cambodia's legal government. Pol Pot's atrocities were by
then known around the world. Yet the U.S. spearheaded a successful
campaign to help the Khmer Rouge retain Cambodia's seat at the
United Nations--a chilling state of affairs that persisted until
the early 1990s.
Over the period from the mid-1970s to
the present, Cambodia has become the test case for internationally
supported nation-building. But like nearly every sector of Cambodian
society, the court system is still recovering from the Khmer
Rouge's destruction. As part of their effort to turn Cambodians
into farmers, Pol Pot's army killed all educated Cambodians and
destroyed an entire generation of teachers, doctors and lawyers.
Today, even in modern, post-Khmer Rouge
Cambodia, the government virtually controls the judiciary, which
fears issuing decisions against entrenched political interests.
Several high-ranking judges have recently been assassinated.
Meanwhile, Cambodia has held a low strategic and economic importance
on the global stage--meaning that its issues have been accorded
low priority.
No wonder, then, that negotiations concerning
a tribunal for Cambodia have dragged on for almost six years.
Choosing a Tribunal
for Cambodia: The Conflict Between the U.S. and the U.N.
Serious discussions finally began in
1997, when Cambodia's two co-prime ministers--including the current
head of state, Hun Sen--requested the U.N.'s help in establishing
a process to provide justice. The motives behind Sen's request
were questionable, as he himself had roots in the murderous U.S.-backed
Khmer Rouge regime.
In 1999, a number of models for tribunals
were discussed. But a group of U.N. experts rejected both purely
Cambodian models, and "mixed" models, in which local
judges, and international or foreign judges, would compose a
panel. The U.N. thought any Cambodian participation would be
unwise, given the low level of competency within, and the high
level of governmental control over, Cambodia's judiciary.
Instead, the expert panel, which included
the U.S., supported the option of an international tribunal staffed
by judges and prosecutors from outside Cambodia. Only non-Cambodian
jurists, their choice suggested, would be immune to the entanglements
and pressures facing domestic judges.
But later that year, the U.S.--without
consulting either the U.N. or Cambodian civil society--reversed
its position. Rather than supporting the prior option of an international
tribunal, it now supported a mixed tribunal--and, indeed, one
that would feature a majority of Cambodian judges and co-prosecutors.
The U.S. also recommended that the tribunal utilize a confusing
and unwieldy "supermajority" formula for deciding cases.
From Hun Sen's perspective, this model
must have seemed ideal: it would be based in his crippled and
cowering domestic judiciary, rather than in an international
body over which he would have less control. The chance that his
ex-henchmen in the Khmer Rouge would be prosecuted would obviously
be far slimmer.
Why did the U.S. undermine the previous
tribunal proposal? Some have speculated it might have done so
to protect its own leaders. Henry Kissinger, then- Secretary
of State and architect of the bombing campaign, has been accused
by some of committing crimes against humanity in Cambodia--crimes
that, if they occurred, an international tribunal would have
been more likely to discover.
Whatever the reason, the U.S.'s reversal
derailed the process for a time. Indeed, it prompted U.N. Secretary-General
Kofi Annan to announce that he would discontinue the U.N.'s participation
in this process entirely.
The system the U.S. had proposed, Annan
argued, would fall far short of internationally agreed-upon standards
of justice. For instance, although Cambodia had ratified the
treaty creating the International Criminal Court, its own tribunals,
under the U.S.'s proposal, would fall far short of the ICC's
standard.
During the next two years, a coalition
of U.N. members, led by the U.S., worked to overcome Annan's
reluctance, to no avail. In early 2002, the U.N. announced that
it was withdrawing from negotiations because it did not trust
former Khmer Rouge associate Hun Sen.
Human rights groups, skeptical that the
Cambodian government would ever give effect to an agreement,
applauded the U.N.'s position. However, the story did not end
there.
The U.S.'s Model Eventually
Prevails--But Still May Not Be Implemented
In late 2002, France lobbied the U.N.
to resume negations with Cambodia, and expressed its support
for the U.S. model for a tribunal. Several meetings between the
U.N.'s legal counsel and a Cambodian delegation followed. From
these sessions emerged a draft agreement to establish a "mixed,"
Cambodia-dominated court very similar to what the U.S. had proposed
several years earlier.
That model formed the core of the agreement
recently approved by the U.N. General Assembly. Nevertheless,
there is no guarantee that this controversial body will ever
see the bright light of a Cambodian day.
The agreement cannot become binding law
until ratified by the Cambodian legislature. With Cambodian national
elections later this summer this is not necessarily a fait accompli.
If the legislature does ratify the agreement,
though, might the Cambodians victimized by the Khmer Rouge find
justice through a tribunal? Sadly, almost no one believes that
would occur.
Meanwhile, Cambodia remains a destabilized
and traumatized society, partly as a result of the U.S.'s conduct
over the years. Twenty-five years have passed since the end of
the violence in Southeast Asia. Yet the only tribunal the people
of Cambodia may get is a U.S.-designed body that has been harshly
criticized by almost every major human rights group in the world.
Don't the Cambodians deserve more than that?
Comparisons with Iraq:
The Lesson of Cambodia's Failed Tribunal Proposals
What might the history of Cambodia's
faltering tribunal teach us about possible developments in Iraq?
Although Operation Iraqi Freedom just
ended, the signs are already alarming. The U.S. has been floating
a variety of plans for mixed tribunals. Several would feature
U.S. military courts. Others would be overseen exclusively by
Iraqi judges. No clear pattern has emerged among the proposals--except
for a strong resistance by the U.S. to any type of international
panel.
Why does the U.S. oppose international
tribunals? Perhaps, in part, for the same reason some thought
it did in Cambodia: to protect its own.
In the past few weeks, a Belgian lawyer
has brought charges of war crimes against General Tommy Franks,
who led the coalition troops against Saddam. Charges like these
would likely by aired in an international tribunal. In contrast,
they might be given much shorter shrift in a tribunal run by
pro-U.S. Iraqi judges.
More broadly, such judges would be susceptible
to U.S. influence in the way an international tribunal would
never be. Since global sentiment largely opposed the war (at
least given the lack of U.N. backing) in the first place, the
U.S. may well fear that, in other ways, an international tribunal
might place blame on the U.S.
Did the U.S. fully comply with rules
on avoiding civilian casualties, for instance? Doubtless, the
U.S. would prefer not to have this issue openly debated in an
inhospitable international forum.
Of course, the Iraqis--on whose behalf
the Administration claimed it was conducting the war--deserve
justice for Saddam's atrocities. As with the Cambodians, whether
they will get it is very much another question. History remains
a battleground; our hope is that international tribunals can
elevate it above the level of a killing field. So far, the signs
as to whether this hope will be fulfilled in Iraq are not positive.
Noah Leavitt,
an attorney, has practiced human rights law in numerous international
and domestic settings, and has traveled extensively in Cambodia.
This article originally appeared on Findlaw's
Writ. He can be contacted at nsleavitt@hotmail.com.
Today's
Features
Standard
Schaefer
Lifting the Sanctions: Who Benefits?
Ron
Jacobs
Long Live People's Park!
Michael
Greger, MD
Return of Mad Cow: US Beef Supply
at Risk
Elaine
Cassel
Tigar to Ashcroft: "Secrecy is the Enemy of Democratic Govt."
Sam
Hamod
The Shi'a of Iraq
Christopher
Greeder
After the Layoffs
Alexander
Cockburn
Derrida's Double Life (poem)
Steve
Perry
Bush's Wars Weblog 5/23
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