Khmer Rouge trial date announced

The first trial of a Khmer Rouge leader is due to start 17th February 2009. Kaing Guek Eav, better known as Comrade Duch is facing charges of crimes against humanity and war crimes. He was in charge of the infamous Toul Sleng prison where detainees were tortured and killed and is the first of five detainees to be sent for trial.

It is reported by officials that Duch, who has been detained since 1999 and has previously admitted his guilt, has been cooperating with prosecutors and is willing to testify in court. The testimony may well reveal significant information about how the Khmer Rouge leadership made their decisions during their time in power.

For the Extraordinary Chambers in the Courts of Cambodia (ECCC), this will be first real move towards prosecuting Khmer Rouge leadership. Whilst the trial may finally draw some attention away from corruption scandals and delays that have dogged the Court it is likely that the trial process will face further delays as the court takes it first steps towards its real work.

The hearing in February will simply examine the lists of witnesses and rule the important question of the extent to which “civil parties” can participate in the trial. The question of how far the victims of the Khmer Rouge will be able to have their voices heard in this and future trials is important and still to be fully resolved. In a decision in March last year the pre-trial chamber of the ECCC ruled that victims should be allowed to participate in court proceedings. However, in subsequent rulings the ECCC appeared to limit the right finding that civil parties could not speak in person in pre-trial appeals.

The ECCC has now launched a media campaign to encourage victims to participate in the upcoming proceedings. Thus civil parties have been given until the 2nd February to come forward. So far 28 people have been officially recognised as civil parties and 70 are being processed.

The trial of Duch is scheduled to begin in March. It is thought that the trials of the other four detainees will not start before 2010.

ICC Prosecutor to Charge Sudanese President?

This blog post was submitted by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. Siobhán Mullally

The Guardian, The New York Times and the BBC this morning report that the ICC Prosecutor, Luis Moreno Ocampo is to seek the arrest of the Sudanese President Omar Al-Bashir on Monday next for war crimes, crimes against humanity and genocide committed in Darfur. Currently, two Sudanese (Ali Kushayb, a leader of the Janjaweed militia, and Ahmad Harun, currently fulfilling one of the more ironic positions imaginable, that of domestic Humanitarian Affairs minister) are charged with 51 counts of war crimes and crimes against humanity, including acts of murder, persecution, torture, rape and forcible displacement. Neither has come before the Court. At a time of existential crisis for the ICC, the move can be interpreted as a bid to reassert the ongoing relevance of a body that has yet to complete a trial since establishment in 2002 after the signing of the Rome Statute in 1998. As William Schabas, the head of the Irish Centre for Human Rights at the National University of Ireland, notes: “This is a very decisive moment for the court. It has been going through a terrible period, this could revive its image and make people feel it’s a robust dynamic institution, or it could be another blow.” This note of pessimism is worth bearing in mind – the story of the ICC has been one of disappointment, disillusionment and anticlimax, most notably in the disintegration of the case against Joseph Kony and allegations by diplomats that the pursuit of arrest warrants in Uganda hampered peace negotiations.

There are justifiable fears that an indictment of Al-Bashir will impair what halting progress there has been made in calming, albeit imperfectly, the situation in Darfur. There are also fears an indictment might serve as motivation to remove international aid workers and peacekeepers in Darfur. The NY Times quotes Alex de Waal, a Sudan expert at the Social Science Research Council in New York: “Bashir is paranoid; he feels the world is out to get him. He is prone to irrational outbursts and could respond in a very aggressive way.” Indeed, peacekeepers were attacked with seven fatalities last Tuesday, while several members of Doctors Without Borders were expelled from the country last week. A charge against Al-Bashir would represent another welcome erosion of the idea of head of state immunity most notable in the prosecutions of Slobodan Milosevic and Charles Taylor. Though both were sitting heads of state at the time of indictment, there was little prospect of them being brought before the ICTY and SCSL while in power, as the Sudanese President so securely is. Milosevic and Taylor had to be removed from office domestically before being brought to justice, something there is little prospect of in Khartoum. Charges might also be welcomed as a move away from the patent absurdity of charging militia leaders and Ministers but ignoring those “conflict entrepreneurs” further up the chain who instigate or retain the capacity to restrain the violence.

Nonetheless, aside from the Kantian moral imperative to prosecute, what of the other instrumental purposes that so often animate transitional justice? Put more simply, given the patent unlikelihood of Al-Bashir being arrested and brought to The Hague any time in the foreseeable future, what good will come from charging someone who will never come before the courts and from hardening the attitude of someone who has shown a willingness to slaughter his own people and to remove international peacekeepers and aid workers whenever it becomes politic to do so? The ICC Chief Prosecutor’s attitude seems to be that it is better to light a single candle than to curse the darkness, but the candle could set fire to the negotiations that have brought peacekeepers to Darfur and restrained the butchery. It may dash what little hope of progress that remains.