27 December 22
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As Ukraine seeks justice for crimes committed by Russia, Cambodia could offer lessons — and cautionary tales.
That decision has ended the tribunal’s judicial work. Now, as it winds down after spending 16 years investigating and prosecuting the senior leaders of the Khmer Rouge, its experiences offer valuable lessons on how best to secure justice in the current conflict that’s shaking the world’s conscience: Russia’s war in Ukraine.
The Khmer Rouge was a Maoist-inspired movement that devastated Cambodia during its brutal four-year rule from 1975 to 1979. The tribunal had the challenging job of investigating events spanning the entire territory of Cambodia over several years and adjudicating some of the most serious crimes known to humanity. It accomplished these tasks, bringing about one of the few convictions of a head of state since World War II. And it did so with an extensive in-person outreach programme that involved hundreds of thousands of Cambodians.
The investigations Ukraine needs
Ukrainian authorities have already prosecuted a small number of cases, several of which have resulted in convictions and sentences, and they are investigating many more. But with tens of thousands of potential cases to investigate, they are overwhelmed, and the situation will only get worse as the war drags on.
The International Criminal Court (ICC) has also opened an inquiry and sent its largest investigative team ever to Ukraine to begin to prepare cases. But the court also faces limitations. Its mandate is to focus on those most responsible for the crimes – in other words, high-level leaders – and it has never indicted more than six individuals from any given situation.
The ICC also has no jurisdiction over the crime of aggression in Ukraine, which is arguably both the most important crime since the invasion led to and facilitated all subsequent crimes and the easiest to link to high-level leaders like Russian President Vladimir Putin.
To help plug these impunity gaps, two additional courts have been proposed. These are a special court for the crime of aggression to be created by agreement between the United Nations and Ukraine and a high war crimes court, which would fall within the Ukrainian domestic court system but have international advisers to assist with investigations and prosecutions.
As these courts set out on the long road to justice for Ukraine, Cambodia’s example shows what they must focus on – and what they cannot afford to forget.
Don’t give up on the “big fish”
The only prosecutions to date in Ukraine have been low-ranking soldiers responsible for crimes that include individual murders and thefts. At the moment, it seems almost inconceivable that Putin and other senior Russian leaders will ever face justice. They are firmly ensconced in power and barricaded behind their nuclear deterrent.
But the lesson of the Khmer Rouge tribunal is that circumstances change. For years after the Khmer Rouge was ousted by a Vietnamese invasion, it was supported by the United States, Australia and China, all of whom saw it as a counterweight to Vietnamese, and therefore, Soviet influence.
It was not until 1997 that the Cambodian government first requested UN assistance in establishing the Khmer Rouge tribunal. By the time the tribunal began its work in 2007, the geopolitical circumstances that had protected the Khmer Rouge leaders for so long had shifted. The Cold War was over, and Vietnam was no longer seen by the Khmer Rouge’s former supporters as an enemy. As a result, the tribunal was able to try and convict two of the most senior members of the regime, including Khieu Samphan.
In the present conflict, the costs of the war in Ukraine have already shattered Putin’s social contract with elite and ordinary Russians alike. As the war drags on, the burdens on all sectors of Russian society will only increase. The results are hard to predict, but Putin may not always be as safe as he looks at the moment.
Massive crimes can be addressed
The scale of the crimes being committed in Ukraine is staggering. Ukrainian authorities have already registered more than 47,000 alleged crimes across a large geographical area. The number of victims is unknown, but the Office of the UN High Commissioner for Human Rights has recorded at least 6,700 civilian deaths since February and believes the true number is considerably higher. The majority of these deaths is likely to be victims of war crimes or crimes against humanity, so it is reasonable to wonder whether this criminal campaign can ever be meaningfully addressed by the justice system.
Here again, the experience of the Khmer Rouge tribunal gives reason for optimism. The Khmer Rouge’s atrocities spanned nearly four years and covered the entire territory of Cambodia. Experts estimate that as many as 1.5 million Cambodians lost their lives during this period, almost a quarter of the population. Despite the scope of the crimes, the Khmer Rouge tribunal succeeded in carrying out a meaningful investigation and trial of senior Khmer Rouge leaders for these atrocities and delivered convictions.
Not every crime committed in Cambodia was investigated, and it is unlikely that every crime committed in Ukraine will be – the number is simply too great – but by organising the Khmer Rouge’s crimes into broad categories – such as torture and execution centres, forced labour sites, forced marriages – the tribunal managed to facilitate more efficient investigations and court proceedings. International advisers with experience with other mass atrocities could assist Ukrainian prosecutors in similarly prioritising cases and organising them thematically.
Location matters
Any trials carried out by the ICC would take place in The Hague, which would also likely to be the seat of the proposed hybrid court for the crime of aggression. Lower-level perpetrators, however, are likely to be tried in Ukraine.
Having court proceedings where crimes occurred is good for accountability. Over the course of 16 years, more than 240,000 Cambodians attended the Khmer Rouge trials in person. The access also meant that the trials were covered extensively by the local media.
Trials conducted in Ukraine would have similar benefits. A court in Ukraine would also be far more accessible to local journalists than one in The Hague. Investigations would also be more efficient and cheaper. Interviewing witnesses would not require plane tickets, hotels and per diems for staff traveling from abroad.
Courts based in Ukraine would also face challenges, though.
During the work of the Khmer Rouge tribunal, the Cambodian government made occasional statements that certain investigations would not be allowed to proceed to trial, resulting in allegations of political interference.
Despite – indeed, because of – the strong emotion triggered by Russia’s campaign of crimes, it is critical that Ukrainian government officials refrain from making any statements that could be interpreted as directing the work of criminal justice officials or pre-judging the merits of any individual cases. War crimes trials in Ukraine would come under intense worldwide scrutiny, and everything possible must be done to ensure that they would be, and would be seen to be, the product of a fair and independent judicial process.
Go where the evidence leads, even if it’s inconvenient
It seems clear that the vast majority of crimes in Ukraine are being committed by Russian forces. But that doesn’t mean that Ukrainian forces haven’t, or won’t, commit crimes as well. The UN already believes that Ukrainian forces have committed war crimes in at least two instances.
Courts based in Ukraine – whether entirely domestic or ones that are aided by international advisers – must be prepared to investigate and prosecute if necessary any credible allegations of war crimes committed by Ukrainian forces, regardless of rank. Carrying out these investigations and prosecutions would be extremely difficult in a country that is still at war and that is clearly the victim of Russian aggression. But applying the law even-handedly would be key to establishing the credibility and legacy of the verdicts delivered.
The pursuit of justice for Ukraine won’t be easy. But the Khmer Rouge tribunal’s work shows that much can be achieved, even against the odds, and that even criminal heads of state can be punished.
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