Lawfare and international tribunals: a question of definition? A reflection on the creation of the 'Khmer Rouge tribunal'.

• Author: Petit, Robert
• Position: Symposium: Lawfare

1. INTRODUCTION

   I must confess that in over twenty-one years of criminal prosecution, both national and international, I had never encountered the term "lawfare" until I received the invitation to attend this conference. After my initial research and the different presentations here, I understand better why. It seems to me that this term has essentially evolved out of a U.S. military and political context and therefore has had little resonance in international criminal law. (1) From the various attempts at definitions, it does appear to boil down to the use of the judicial system to further political aims, which, I submit, is an essential function of any system of laws. (2) That those aims seem to run counter to prevailing norms or government interest does not appear to change the nature of the system itself which, if it is sound, will assert itself through the proper application of those very laws. Laws are used to express and define the society that elaborates them. They are an evolving reflection of that society, and equating that process to armed conflict seems to me to distort their purpose.

   If, however, we intend lawfare to equate to what is more traditionally viewed as political interference in the application of justice, then yes, lawfare is practiced in international Criminal Law. For example, it is quite clear that political considerations played a fundamental part in the creation of the Extraordinary Chambers within the Courts of Cambodia (ECCC), for which I was the first International Co-Prosecutor.

   Bringing to justice those responsible for the 1.7 million victims of the Khmer Rouge regime would seem such a morally imperative endeavor as to be devoid of political ambiguity. Yet, the creation of the ECCC was probably the clearest example in International Criminal Law of a judicial process beset by political wrangling and used for other ends then justice. (3) That the ECCC has achieved any measure of justice for the victims is a testament not to its political architects to whom this must come as a surprise, but rather to the dedication of its judicial officers. This presentation will provide an overview of this paradox.

2. FIRST SOME HISTORY

   In April 1975, a Communist movement commonly known as the Khmer Rouge took power in Cambodia after a protracted fight against a U.S. supported regime. (4) Inspired by the most extreme currents of previous Communist regimes, the Khmer Rouge proceeded to implement a radical reengineering of Cambodian society with combined results more extreme than any of these previous regimes. (5) Literally overnight, the Khmer Rouge abolished all individual rights, forcibly evacuated all major cities to compel the population to live and work exclusively in collective farming cooperatives, and press-ganged hundreds of thousands of men, women and children into slave labor on massive public works projects. Over the course of the Khmer Rouge's three years, eight months, and twenty days in power, they mercilessly hunted down and executed hundreds of thousands of perceived enemies, inside and outside their own Party. (6) In part because of having depleted their own ranks through massive purges, the Khmer Rouge regime eventually collapsed as the result of a Vietnamese-led invasion but remained a militarily relevant guerrilla force for the next two decades. (7)

   Prominent among the new governors of Cambodia were ex-Khmer Rouge commanders and other Party cadre who had defected to the Vietnamese to escape purges and who now served as Cambodian figureheads for the new government. (8) Eventually rising to the top would be a former lower level Khmer Rouge cadre, Hun Sen, who would become Prime Minister of the new regime in the 1980s and remains so today. (9)

   Faced with the massive crimes committed by the Khmer Rouge and their continued military activities, in 1979 the new Cambodian regime put on trial in abstentia two of the Khmer Rouge leaders, Pol Pot, the head of the movement, and Ieng Sary, its Foreign Minister. (10) Despite the quality of the evidence amassed, the 1979 trial was a typical Soviet-type show trial where justice was a distant second goal to the primary objective of destroying the political credibility of a movement that, thanks to Cold War politics, still retained international support in spite of its obvious criminal nature. (11) After this egregiously flawed attempt at accountability, no other form of justice would be forthcoming for the victims of the Khmer Rouge until the late 1990s.

   The evolution of the Cambodian political landscape post-Khmer Rouge era is a complex subject and much discussed by numerous scholars. For the purpose of this presentation, I would summarize it thusly: the former Khmer Rouge elements of the government installed by the Vietnamese, led by amongst others Hun Sen, eventually came out on top with Vietnamese backing and via their often ruthless use of political, military and police powers. By 1997, then Co-Prime Minister Hun Sen and his supporters inside the Cambodian People's Party were in a position to assert dominance over long-time non-Communist rivals, notably the National United Front for an independent, Neutral, Peaceful, and Cooperative Cambodia (FUNCINPEC), whose head was also a Co-Prime Minister. (12) A Hun Senled coup in 1997 largely destroyed FUNCIPEC, leaving Hun Sen and his allies in the Cambodia People's Party to advance to total control of Cambodia, the situation that exists today. (13) At the same time, the Khmer Rouge movement collapsed from within, encouraged by Hun Sen's use of politically engineered defections coupled with the threat of judicial accountability. (14)

   Most significantly, in August 1996, Ieng Sary, formerly the leader of one remnant of the Khmer Rouge, defected to the Government. (15) A few weeks thereafter, in September, he was granted a pardon for his sentence in abstentia and granted immunity from prosecution under a 1994 law that outlawed the Khmer Rouge. (16) However, the language of these dispositions did not seem to preclude subsequent prosecution for any crimes committed, and indeed this is what has been argued with some success before the ECCC. (17)

   Somewhat paradoxically, the success of the defection policy brought forward the debate on impunity for the Khmer Rouge. In early 1997, taking advantage of the apparent willingness to confront this issue, a U.N. independent human rights envoy managed to convince both Co-Prime Ministers to sign a letter requesting the U.N.'s assistance in trying those responsible for the crimes of the Khmer Rouge. (18) It has been reported...