International Cooperation in Dealing with International Crimes under International Criminal Law: The Case of the Khmer Rouge Tribunal

International Cooperation in Dealing with
International Crimes under International Criminal Law:
The Case of the Khmer Rouge Tribunal

Introduction

Traditional international law considered the sovereignty of state as the core principle and state cannot be interfered by other states or international community even though it is failed to protect its people. The modern international law developed when the Peace of Westphalia was signed in 1648. With this development, the principle of sovereignty of state has been gradually replaced with the principle of international community as every state more or less is dependent, particularly in terms of economics and politics, in order to survive in the world community. In this regard, each state came into agreement on trade, diplomacy and so on with the others. So each is bound by international law either treaty, customary international law, or other sources of international law. Regarding the international crimes under international criminal law such as genocide, crimes against humanity, and war crimes, most of the states more or less are bound by them, significantly under the 1948-Convention on the Prevention and Punishment of the Crime of Genocide, 1968-Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, and the 2002-Rome Statute of the International Criminal Court (ICC).

Throughout the history, a number of genocide, crimes against humanity and war crimes happened, but only were four ad hoc tribunals right away created to prosecute the criminals before the ICC came into being in 2002. Those are the 1945-Nuremberg Tribunal, the 1946- Tokyo Tribunal, the 1993-International Criminal Tribunal for the Former Yugoslavia, and the 1994-International Criminal Tribunal for Rwanda. However, such a thing was not undertaken in Cambodia after the Khmer Rouge regime collapse in 1979. The Khmer Rouge Tribunal is selected to study because it is the only tribunal established very late after the carelessness of the international community and the prolonged and often acrimonious cooperation and negotiation between the Cambodian government and the UN, unlike the others. So it is interesting to look at this particular tribunal and the way of cooperation between the Cambodian government and the UN in creating the trial and seeking justice for Cambodian victims. This paper thus will first define the definitions of international crimes under international criminal law, then highlight the international cooperation of international community to establish the tribunals, particularly the twentieth first century-permanent International Criminal Court, to try those who committed international crimes under international criminal law, and last, analyze the Khmer Rouge Tribunal, especially the cooperation between the Cambodian government and UN in seeking justice for Cambodian victims if it is successful or fail.

The Definitions of International Crimes

How is international crime defined? Under the international criminal law, it is particularly defined as genocide, crimes against humanity and war crimes; other crimes such as crime of aggression, terrorism, drug trafficking, weapon trafficking, money laundering, and so on are also regarded as the international crimes, but lack of universal consensus for the exact definitions for the crimes of aggression and terrorism, and also for the universal acceptance as international crimes in terms of drug trafficking, weapon trafficking, money laundering and so forth^[1]. How are genocide, crimes against humanity and war crimes defined^[2]

Pursuant to the Rome Statute of the International Criminal Court, Article 6 defines genocide as “Any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial and religious group, such as: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group”. Article 7 defines crimes against humanity as “Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” . And Article 8 defines war crimes as “(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention...; (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.; (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause.; (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature; (e) Other serious violations of the laws and customs applicable in armed conflict not of an international character, within the established framework of international law, namely, any of the following acts...; (f) Paragraph 2 (e) applies to armed conflict not of international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflict that take place in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”^[3].

The International Cooperation in Dealing with International Crimes:

The Creation of the Permanent International Criminal Court in the 21st Century Genocide, crimes against humanity, and war crimes happening in the 21st Century is not new as they have originally occurred long time ago. Throughout history, those crimes have happened. In this regard, the world had tried to set up the world court dealing with those crimes, but only in 2002 did this attempt come into reality that the International Criminal Court (ICC) was established. The road toward the creation of the ICC is long and contentious. The attempt of the establishment the ICC is the culmination of two trends in world politics, one of which can be dated back to the 19th century, and the other was after the World War II. In 1872, a permanent court was proposed by Gustav Moynier, one of the founders of the International Committee of Red Cross, to prosecute those committed crimes during the Franco-Prussian War. The next attempt was initiated by the drafters of the 1919 Treaty of Versailles to bring Kaiser and German war criminals of World War I to justice (Coalition for the International Criminal Court, n.d.). After the World War II, other attempts were the Nuremberg and Tokyo Tribunals, which were created to try war criminals.

The Nuremberg International Military Tribunal was set up in 1945 by four victorious powers to which Germany had unconditionally surrendered. Those powers are Great Britain, France, the Soviet Union, and the US. Judges and prosecutors were appointed by the victorious powers. Twenty four major Nazi war criminals were tried by the court, while the prosecution of minor Nazi war criminals was left to the states where they committed their crimes (Kittichaisaree, 2001). Article 6 of the Nuremberg Charter demanded individual responsibility for crimes against peace, violations of the laws or customs of war, and crimes against humanity^[4].

The Tokyo International Military Tribunal was set up in 1946 by the United States Supreme Commander-in-Chief in Japan. The eleven judges of the tribunal, including judges appointed from the names submitted by the signatories of the Japanese terms of surrender such as the US, Australia, Canada, China, France, Great Britain, the Netherlands, New Zealand, and the Soviet Union, and by India and the Philippines, were appointed by that Commander-in-Chief. The Tokyo Tribunal modeled on the Nuremberg Charter. There were three types of Japanese war crimes suspects—“A”, “B”, and “C”. The “A” suspects were charged with crimes against peace; the “B” suspects with conventional war crimes, and the “C” suspects with crimes against humanity. Only the “A” suspects including former Prime Minister Hideki Tojo were tried by the court, while the “B” and “C” suspects were prosecuted before military courts in various states (Kittichaisaree, 2001).

The criticisms of the Nuremberg Tribunal and Tokyo Tribunal are that it dispensed victor’s justice and violated the principle of legality. The criticism of the Nuremberg Tribunal reflects the claim of Overy (2003) that “The trials were without question a political act, agreed at the level of diplomacy, and motivated by political interests” (p. 29). Although they were revealed as the victor’s justice, the Nuremberg and Tokyo Tribunals were the first international criminal law institutions which paved the way for the establishment of the ICC.

In 1948, the need of the world court to deal with international crimes as those committed during the World War II was recognized by the United Nations General Assembly. The International Law Commission, with the request from the UN General Assembly, drafted two draft statutes to create the ICC in the early 1950s (Schabas, 2001). However, this endeavor was shelved because it was politically interrupted by the Cold War.

In response to the crimes committed in both the former Yugoslavia and Rwanda in 1993 and 1994 respectively, the ad hoc tribunals were immediately set up to try perpetrators. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up by the UN Security Council in 1993, pursuant to Resolution 808 of 22 February 1993 and Resolution 827 of 25 May 1993^[5]. The Security Council considered the war within the territory of the former Yugoslavia since 1991 as a threat to international peace and security, so it exercised its powers under Chapter VII of the UN Charter to establish the ICTY to try criminals in order to maintain peace and security in the Former Yugoslavia. It prosecutes those responsible for the violation of the 1949-Geneva Conventions relating to the protection of victims of international armed conflicts, the customary international law of war, genocide, and crimes against humanity^[6]. Moreover, the International Criminal Tribunal for Rwanda (ICTR) was set up by the UN Security Council in 1994 under the Resolution 955 in response to genocide and other international humanitarian law violations committed in Rwanda^[7]. The court has jurisdiction over genocide, crimes against humanity, and the violations of Article ^[8] common to the Geneva Conventions and of Additional Protocol II, committed within the territory of Rwanda and neighboring countries between 1 January and 31 December 1994 .

[...]

^[1] See more details in Kittichaisaree (2001).

^[2] See more details on crimes against humanity defined in the Rome Statute at http://www.icc- cpi.int/librarv/about/officialiournal/Rome Statute 120704-EN.pdf. Retrieved December 15, 2008

^[3] See more details on war crimes in the Rome Statute at http://www.icc- cpi.int/librarv/about/officialjournal/Rome Statute 120704-EN.pdf. Retrieved December 15, 2008

^[4] See the Article 6 of the Nuremberg Charter at http://avalon.law.yale.edu/imt/imtconst.asp#art6. Retrieved December 17, 2008

^[5] See the UN Security Council Resolution 808 (1993) at http://daccessdds.un.org/doc/UNDOC/GEN/N93/098/21/IMG/N9309821.pdf7QpenElement. and Resolution 827 (1993) at http://www.un.org/icty/legaldoc-e/basic/statut/S-RES-827 93.htm. Retrieved December 07, 2008

^[6] See Article 2-5 of the ICTY Statute at http://www.icls.de/dokumente/icty statut.pdf. Retrieved December 17, 2008

^[7] See the UN Security Council Resolution 955 (1994) at http://www.un.org/ictr/english/Resolutions/955e.htm. Retrieved December 07, 2008

^[8] See Article 2-4 of the ICTR Statute at http://www.icls.de/dokumente/ictr statute.pdf. Retrieved December 17, 2008