THE LAW OF HUMAN RIGHTS: POINTING A VALUABLE FINGER by Murray Shanks
On Saturday the UN Security Council unanimously adopted Resolution 1970/2011, which among other things referred the situation in Libya since 15 February, the day of the first protests in Benghazi, to the Prosecutor of the International Criminal Court, the ICC. This reference enables the Prosecutor to start an investigation into that situation, and gives the International Criminal Court jurisdiction in relation to “grave crimes against humanity” committed in Libya after 15 February. Thus Gaddafi and others in the regime are exposed to possible prosecution before an international court for their treatment of innocent civilians during the current uprising. Were it not for the specific UN Security Council Resolution the ICC would not have any jurisdiction over him, because Libya is not a party to the Rome Statute, which is the treaty setting up the ICC, and the general jurisdiction of the court requires the relevant state to be such a party. It is a supreme irony of the situation that three of the permanent members of the Security Council who voted for the reference are themselves not parties to the Rome Statute, namely the Russian Federation, the People’s Republic of China and the United States of America. As with so many international treaties the US has not felt able to join in the Rome Statute, basically because it does not trust foreigners to exercise any jurisdiction over its citizens or affairs.
The Rome Statute, which established a permanent international criminal court for the first time, was adopted by 120 states on 17 July 1998 and came into force on 1 July 2002, after it had been ratified by 60 of them, and it is now fully functioning in the Hague, though it can only deal with crimes committed after the latter date. The international community had aspired to set up the ICC for decades and it represented the culmination of years of work agreeing on the court’s terms of reference and how it was going to be organised. Before the establishment of the permanent court various ad hoc international tribunals had been set up by the UN in 1990s to bring to justice those guilty of grave crimes arising out the terrible events in former Yugoslavia, Rwanda and other parts of the world.
Although it is hard to criticise the principle of international criminal tribunals (and now the ICC) being established to deal with such crimes, inevitably questions arise as to whether the whole exercise can be justified, given the practical difficulties and expense. On a visit to Cambodia in December with Prospero World I had an opportunity to see an example of a UN established court dealing with the appalling crimes against humanity committed there during the 1970s, which gave me further food for thought on this topic.
The extraordinarily named “Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea” was established under a 2003 treaty between the UN and Cambodia. It is a hybrid court containing Cambodian and international judges funded by the UN set up specifically to try the surviving Khmer Rouge leaders. The court is housed in a group of buildings (including a holding prison for those who have been indicted) located at the end of a strange finger of territory that is part of the city of Phnom Penh. It is in this finger because the treaty required the court to be sited within the city of Phnom Penh while the most convenient place for it was just outside the existing city limits, and so that particular dilemma was solved by the expedient of extending those city limits.
I took a taxi through the seemingly endless suburbs of Phnom Penh into that finger of territory to visit the court with Sinet Chan, one of the girls rescued from an abusive orphanage in Battanbang in 2006 by the remarkable Australian woman, Tara Winkler. Sinet was a very bright girl who has been sent to a good high school in Phnom Penh by Winkler and she is keen to become a lawyer one day. The day of our visit was World Human Rights Day and a national holiday in Cambodia so ironically only the UN appointed international staff were working at the court. We were met by a judge of the court, Rowan Downing, who spent two hours showing us round and explaining its workings. Judge Downing is an Australian steeped in the common sense of the English common law, but experienced too in the ways of international courts and the French system of criminal justice (on which the Cambodian is based).
We were shown the two court rooms, the vast public gallery, the judges’ retiring room, the holding cells below the court, and the court offices. The whole thing is a vast undertaking: the court operates in three languages (Khmer, English and French) so everything has to be simultaneously translated; it has the most extensive and sophisticated electronic communications system in a court that I have seen; there are hundreds of thousands of documents to deal with; up to seven judges at a time hear applications and trials; the French system involves the judges being responsible for the whole investigative and trial process so there are pre-trial, trial and appeal chambers; and the court’s statute entitles injured third parties to be heard and to seek compensation (and thousands have sought to do so).
So far only one trial has been completed: that of Kaing Guek Eav (alias “Duch”), the infamous Chairman of the S-21 interrogation unit in Phnom Penh. In July 2010 the trial chamber produced a 275 page judgment finding Duch guilty of crimes against humanity and grave breaches of the Geneva Conventions and sentenced him to 35 years imprisonment. Although he co-operated throughout the process and effectively accepted his guilt he is now appealing and seeking to resile from that position. He therefore continues to be held at the court prison rather than in a regular Cambodian jail.
The next (and possibly last) trial scheduled involves four senior Khmer Rouge party members, including Pol Pot’s “Citizen no 2”. The trial proper will start around April 2011, so the pre-trial chamber in which Judge Downing sits is busy with many issues that are arising before the cases are ready for trial. These four defendants (three men, one woman) are now old and infirm, a feature which adds to the logistical nightmare of holding the trials, not least because of the frequent need for rest breaks. The holding cells below the court room not only contain television links to the court room, but beds for them to rest on during breaks and a stair lift to get them upstairs to court.
Sinet’s reaction on seeing those holding cells was very telling; she was amazed to think that Duch had actually been there and that he had been held in such relative comfort. And she was sure when Judge Downing told us about the necessity for security arrangements in the courtroom to protect Duch from people wanting to take revenge and kill him that she would be among those who wanted to do just that. The good judge patiently reminded her that even Duch and his comrades were entitled to protection by the law and to a fair trial, before they could be considered guilty and worthy of punishment.
Whatever her private thoughts about that message were, I found it re-assuring to see that Sinet, who was born more than 10 years after the defeat of Pol Pot, cared so much about how her people had suffered at the hands of Duch and his comrades. It made the whole cumbersome and expensive process seem worthwhile. As we travelled in silence back to town and I tried to find my way around that 275 page judgement I could sense her sitting beside me wide-eyed at it all and perhaps determined to have her own better and sweeter revenge for her people’s suffering. MURRAY SHANKS February 22nd 2011
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Murray is a circuit judge who sits in the Snaresbrook Crown Court in East London, hearing rather more mundane criminal cases than those which concern the ICC. The photo is of human victims from ‘the Killing Fields’ in Phnom Penh. An earlier version of this essay appeared as a blog on the Prospero World website and to visit it and see all the fund reaising work they do click