It is a simple premise: If the murder of one man must be punished, so too must the murder of a million people. But this simple schoolyard morality has proven, over the course of the 20th Century, devilishly difficult to implement.
The Nuremberg trials of Nazi leaders after World War II kicked off a global effort to hold even the most powerful villains accountable to a higher body of international law. That effort picked up speed after the Cold War, with the creation of courts in the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia.
Cambodia’s tribunal, like Sierra Leone’s, is part of the second generation of international criminal courts. The first generation—namely, the ad-hoc tribunals for the former Yugoslavia and Rwanda—has been discredited as too expensive and too remote.
Now, people from around the world are watching to see what lessons the Extraordinary Chambers in the Courts of Cambodia may hold for the future of international jurisprudence.
The answer may be: fairly little. With the establishment of the International Criminal Court in The Hague, which began work in 2002, many say that local, hybrid courts will be needed only in exceptional situations—chiefly when the crimes at hand do not fall within the ICC’s jurisdiction.
The ICC has jurisdiction over crimes that happened after 2002 in countries—or perpetrated by nationals from countries—that are party to the 1998 Rome Statute establishing the court. Currently 106 of the world’s 193 nations are; China and the US, notably, are not among them.
Lessons about hybrid justice, however, could still be applicable within the framework of the ICC. Though headquartered at The Hague in the Netherlands, the ICC can hold trials elsewhere. Many, for example, hope that prosecutions for the Darfur genocide in Sudan will take place somewhere in East Africa.
No court is perfect. The question of how best to ensure that no one remains above the law remains very much up for debate.
The ECCC’s key distinction is that it is a national court, dominated at every level by national players—an arrangement that has come in for some bracing, if perhaps premature, criticism.
The hybrid Special Court for Sierra Leone, in contrast, has a majority of international judges; its prosecutors report to a UN-appointed chief; and its administrative structure is controlled by a UN-appointed registrar.
Stephen Rapp, chief prosecutor at the Special Court, says he is a “strong believer in the hybridization of courts.” While he says the Special Court’s national staff—who comprise 60 percent of the payroll—are essential, he also believes international control is crucial.
The main problem with national courts, he said, is independence: They don’t have a good record of prosecuting members of a seated regime or its allies.
His advice for the people of Cambodia: “Follow these institutions closely. Make sure they are doing their job. Make sure they’re being held to account for the resources they are using.”
But hand-wringing must not distract from the fundamental drive of international justice. All these courts trade in massacres and the worst nightmares of people, and they are, even if flawed and expensive, better than nothing.
Hassan Jallow, chief prosecutor of the International Criminal Tribunal for Rwanda, says, “Rwanda alone would not have been able to reach some of the figures we’ve prosecuted, high-level figures who fled to other countries.”
“It demonstrates that law is an option in conflict resolution. It doesn’t have to be violence,” he added.
Fatou Bensouda, the deputy chief prosecutor for the ICC maintains that the threat of prosecution at the ICC has helped bring rebel leaders from Uganda to the table for peace talks, and the arrests of top leaders in the Democratic Republic of the Congo have sped up the demobilization of child soldiers.
More profoundly, Rapp says: “The idea that dictators can be allowed to go into safe exile—time-honored since Idi Amin—is no longer applicable. Peace negotiators say, ‘Don’t you know what you’ve done to us? We can’t get the guy out of the Presidential Palace.’”
