Journal for the Study of Peace and Conflict COUNTDOWN TO A PERMANENT INTERNATIONAL CRIMINAL COURT: TOWARD A RAPPROCHEMENT OF THE CAMBODIAN GENOCIDE by George Yacoubian Jr.
	International Criminal Law The development of international criminal law is imperative to disbursing commensurate global justice. Social control is predicated on the assumption that law-abiding citizens will be protected from law-violators via [successful] criminal prosecution and eventual punishment. The importance of social control is no less meaningful when discussing violations of international criminal law. Indeed, the obligation to develop adequate enforcement mechanisms is perhaps more essential internationally because of the comprehensive and threatening nature of the crimes. The consequences of genocide, for example, are clearly more ominous than any single violation of domestic statutory law. As there is no doubt that the final goal of criminal justice is to combat crime, it should be recognized that this effort must proceed both on the national and international levels. International criminal law should consistently reflect the shifting interests of global political, social, economic, and military reality. As such, the development of international criminal law must evolve with the cooperation and contribution of the global community. The development of an international criminal law requires that individuals and nations of diverse cultures, ideologies, and experiences agree on the norms and principles that will limit and monitor their behavior. There should be no dispute that certain acts are of such horrendous proportion that they not only violate domestic statutory law, but also laws that the international community as a whole finds particularly abhorrent. Though practiced all too frequently, crimes such as genocide, apartheid, and slavery are an affront to modern civilization. The ability to identify, prosecute, punish, and prevent such crimes is an arduous task for the international community. Indeed, it must first be recognized that the responsibility itself is one that cannot be completed without the collaboration of the entire global community. This universal cooperation requires not only mutual assistance in identifying internationally prohibited criminal behavior, but also prosecuting all offenders to the fullest extent permitted by the international legal order. Anything less than full criminal law enforcement diminishes the severity with which the international community regards these acts. As is true with all domestic criminal justice systems, laws without the proper mechanisms of enforcement are virtually ineffective. International criminal law is a clear example of an impotent system of law that languishes without the proper methods necessary to enforce it. Today, there is no permanent institution with the authority to definitively articulate binding norms of international criminal law. The ironic conundrum of the international legal community is how it is possible to know the content of international criminal law without an authoritative entity to clarify norms. In a decentralized system--a system ripe for manipulation--there is a cacophony of conflicting state voices. This is precisely what is occurring in our present international legal order. To clarify this assertion, the development of an international criminal code and international criminal court are explored below. International Criminal Code Though the creation of an international criminal code and court would seem to be complementary, they have been developed separately. It may be safely assumed that a system of criminal law cannot be enforced effectively unless there is reasonable consensus in the society as to the offenses that should be prohibited. Enforcement mechanisms cannot enforce what does not exist. The creation and perpetuation of such an international criminal law regime depend on acceptance by the international community of a comprehensive code of international crimes. In 1947, the United Nations General Assembly mandated the International Law Commission (ILC) to codify "Offenses Against the Peace and Security of Mankind" (Ferencz, 1992). In response to that mandate, the 1954 Draft Code was comprised of thirteen criminal acts, notably concerned with aggression and genocide. The 1954 Draft Code was tabled however, for three reasons: first, because the term ïaggressionÍ could not be defined; second, because of the difficulties in formulating an international criminal jurisdiction; and third, because of a lack of political will to develop it (Williams, 1986). The East-West cold war rivalry significantly diminished the ability of leading states to concentrate on international criminal law. Furthermore, the inability to define aggression delayed what might have been a consequential breakthrough in the field of international criminal law. As Ferencz (1992: 377) affirms, "ƒ there was no purpose in trying to reach an agreement about an international criminal code and court as long as the principal international crime, aggression, was not yet defined." For several decades it was easier to commit aggression than it was to define it. It was not until 1974 that the international community was finally able to define aggression. As Cold-War tensions began to ease during the mid-1970Ís, and international relations began to improve, the barriers that once prevented the creation of an international criminal code and court were removed. As such, nations began moving toward the creation of an effective rule of international criminal law. Nevertheless, the development of an international criminal code was not expeditious. Close to two decades passed, with the debate focusing on which crimes should be included in a revised international criminal code (Williams, 1986). While leading states, such as the United States, preferred the focus to be on threats such as terrorism and nuclear proliferation, Third World nations insisted the focus concentrate on human rights violations. While leading states were intent on ceasing criminal acts that endangered a peaceful, democratic existence, Third World Nations were concerned with intranational atrocities that threatened their survival. This debate continued until July 1991, when the ILC completed a redesigned Draft Code of Offenses Against the Peace and Security of Mankind (Bassiouni, 1995). The 1991 Draft Code marks the second major attempt by the United Nations in the past forty years to introduce a comprehensive and universal normative framework for international criminal justice regulation. Though the Draft Code has not been universally secured as a binding reflection of international prohibited criminal behavior, there are twenty-two recognized international crimes, including, for example, war crimes, crimes against humanity, apartheid and genocide (Bassiouni, 1986). These crimes are designated as international crimes because they possess either an international or transnational element. That is, these crimes constitute offenses against the world community (international), or the commission of the acts affects the interests of more than one state (transnational). International criminal laws are considered supreme. The rights and obligations that a state has under international criminal law are superior to any rights or duties it may possess under domestic law. Despite this guiding standard, the administration of international criminal justice is frequently not pursued when the aggressors are leading states. Laws that should be applicable to everyone are often not. Leading states have consistently imposed their will over those not as geopolitically powerful. In that the most powerful states are hesitant to be governed by a universal jurisprudence, international criminal law has been an unattainable ideal. This contradiction has been sustained by the failure of the global community to develop an international criminal court in which to prosecute offenders. International Criminal Court An international criminal court (ICC) is necessary to prosecute and punish individuals for acts that the world community regards as particularly destructive of international peace. The lack of a permanent tribunal to try individuals charged with international crimes is one ingredient that has prevented the creation of a tangible international criminal justice system. While the international community has sought to establish a permanent international criminal court since the end of World War I, the goal has yet to be realized (Bassiouni, 1995; Ferencz, 1992; Pella, 1950). As Pella (1950: 68) stated over four decades ago, "international criminal law can achieve nothing unless there be an international court to apply it." Since World War II, only two international conventions have referred to international criminal jurisdiction: Article VI of the Convention on the Prevention and Punishment of the Crime of Genocide (December 9, 1948, 78 U.N.T.S. 277) and Article V of the Convention on the Suppression and Punishment of the Crime of Apartheid (G.A. Res. 3068 (XXVIII), 28th Sess., Supp. No. 30, at 75, U.N. Doc. A/9030). Though the latter required the creation of an international criminal jurisdiction to prosecute crimes of apartheid, it has not yet been produced. The last four decades have clearly demonstrated the need for a mechanism to prosecute violations of international criminal law. As Ferencz (1992: 377) states, "the war in Vietnam illustrated the enormous devastation and futility of modern warfareƒ terrorism seemed to run rampantƒ human rights violations remained uncheckedƒ and war threatened the security of people everywhere." In 1989, the General Assembly requested that the ILC prepare a report on the establishment of an international criminal court for the crime of drug trafficking (Bassiouni, 1995). In response to this request, the ILC completed a report in 1990. Though the report was not limited to drug trafficking, the General Assembly encouraged the ILC to continue its work. At its 44th Session in 1992, the ILC established a working group, which laid down basic parameters for a Draft Statute (Bassiouni, 1995). At its 45th Session in 1993, the Commission received the report of a working group containing a Draft Statute for an International Criminal Tribunal, and, without formally adopting the text, referred it to the General Assembly (Bassiouni, 1995). At its 46th Session in 1994, the Commission proceeded to adopt a Draft Statute for an International Criminal Court (Bassiouni, 1995). Thus, within three sessions, the ILC completed work on a difficult and controversial topic that took over four decades even to approach. The proposed ICC will be a permanent institution, with international jurisdiction complementing national legal systems, designed to investigate and bring to justice individuals who commit the most serious crimes of concern to the international community, such as genocide and crimes against humanity. A conference of plenipotentiaries has been called to draw up a treaty to enact the statute (Wisskirchen, 1997). From March to August 1996, several Preparatory Committees were convened to discuss issues of jurisdiction, definitions of crimes, trigger mechanisms, procedural questions, substantive rights of the accused, and the relationship of the Court to the UN Security Council. On December 17, 1996, the General Assembly adopted the resolution on the establishment of an international criminal court by consensus (Wisskirchen, 1997). The resolution called for the convening of an international treaty conference to establish the ICC in 1998. By the summer of 1998, it is anticipated that an international treaty conference will be convened in Rome, with signature and treaty ratification following shortly thereafter. Every civilized society is organized with clear laws and courts to determine whether the laws have been violated. These two features are clearly interdependent. However, the codification of principal crimes against the security of mankind and the creation of an international criminal court are not simple matters. A serious effort to reconcile divergent legal systems and reach acceptable compromises requires diligence, patience, and the willingness to relinquish jurisdictional power. Though remarkable progress has been made in recent years, the question remains as to whether the work completed by the ILC will actually become reality. Geopolitical forces continue to hinder the creation of this entity. The Cambodian Genocide demonstrates the reluctance of the international community to enforce the most flagrant violations of international criminal law. Cambodian Genocide Though the crime of genocide has repeatedly stained the pages of history, its contemporary manifestation has indicated a capacity for atrocity on an unprecedented scale. Despite repetitive examples, with Burundi and Rwanda the latest illustrations, many still perceive genocide as the province of the bestial. Genocide however, is not primitive. It requires sustained social organization and rationalization. Though the concept of mass extermination may be irrational, the means are calculated. Simply put, genocide is designed to achieve one primary objective--the destruction of a distinct human population (Yacoubian, 1997). Despite the contemporary significance surrounding the genocide in Cambodia, and its two decade-long history, the scholarly literature remains relatively sparse (Kiernan, 1994; Becker, 1986; Barron and Paul, 1977). The Khmer Rouge, headed by Pol Pot, gained control of Cambodia in April 1975. Although most Cambodians welcomed the new regime, the initial enthusiasm faded as the Khmer Rouge began to institute some of the most radical policies ever experienced by a post-revolutionary nation (Becker, 1986). Within days of its victory, the Khmer Rouge began evacuating the countryÍs major cities. Along the same extreme lines, money was abolished and symbols of Western technology, such as automobiles and refrigerators, were destroyed. The Khmer Rouge severed contact to the outside world, cutting off international telephone lines, telegrams, and international mail service (Kiernan, 1994). From 1975-1979, the Pol Pot regime systematically subjected the Cambodian population to forced labor, starvation, and outright murder. From the outset, the Khmer Rouge proclaimed the need for complete ideological and racial purity. The genocide in Cambodia was perpetrated against three categories of victims: religious groups, ethnic groups, and a part of the majority national group (Kiernan, 1994). During Pol PotÍs effort to remold society, eradicate individualism, and create "total communism," Cambodia was subjected to what was likely the worldÍs most radical political, social, and economic revolution. As Kiernan (1994: 191) affirms, "the country was cut off from the outside world; schools and hospitals were closed; families were separated; and 1.5 million of its nearly 8 million people were starved to death or massacred." To apply Article II of the Genocide Convention to the actions of the Khmer Rouge, three determinations must be satisfied. First, Article II requires that "a national, ethnical, racial, or religious group" be identified. Second, actual genocidal acts would have to be confirmed. Third, the perpetrators must demonstrate "an intent to destroy, in whole or in part," one of those identified groups. All three prerequisites seem fulfilled. First, several targeted groups, such as the Cham Muslims, the Buddhist Monks, and the ethnic Chinese, Vietnamese, and Thai represent "national, ethnical, racial or religious groups." Second, outright killing has been recognized as the preferred method of dealing with the members of the groups cited above (Kiernan, 1994; Barron and Paul, 1977). Third, although there has been considerable debate over whether alleged perpetrators must show intent to destroy an entire group (Fein, 1993), it seems unlikely that such a restrictive interpretation would be applied in light of the substantial numbers and proportions of targeted group members killed by the Khmer Rouge. In that the application of any higher standards would clearly reduce the effect of the Genocide Convention, the numbers and proportions of genocidal victims in Cambodia clearly demonstrate intent. The genocidal acts perpetrated by the Khmer Rouge were virtually ignored by the global community. Although the Khmer RougeÍs four-year reign ended over two decades ago, attempts to focus international concern on that regimeÍs atrocities have been impeded by political concerns (Kiernan, 1994). The failure of the international community to address human rights violations in Cambodia twenty years ago has indeed caused present day ramifications. The United States, for example, was instrumental in not only failing to suppress the Khmer Rouge regime, but also offering them military and political assistance (Kiernan, 1994). As Kiernan (1994: 207) attests, "the United States was instrumental in rescuing the Khmer Rouge army after its 1979 defeat by Hanoiƒ handing over $12 million worth of food to the Thai army to pass on to the Khmer Rouge." For a decade after the commission of genocide, the United States offered diplomatic support for the Khmer Rouge (Kiernan, 1994). Though the United NationÍs Human Rights Subcommission recognized genocidal acts perpetrated by the Khmer Rouge regime, not a single Western country has voted against its right to represent the nation of Cambodia in the United Nations. The implications of Pol PotÍs transgressions have finally come to pass. CambodiaÍs ruthless Khmer Rouge, responsible for the deaths of millions, have disintegrated with the same savagery they once applied to others. Until only recently, Pol Pot and his depleting armies still possessed a stronghold in Northern Cambodia. In early June 1997, Pol Pot ordered the killing of Son Sen, one of his top genocidal commanders, lending credence to reports that a Khmer Rouge faction had staged a mutiny against the aging leader (Branigan, 1997b). Despite not having Pol Pot in custody, Cambodian co-prime ministers, Norodom Ranariddh and Hun Sen, stated they would like to put Pol Pot on trial before an international tribunal (Branigan, 1997a). Until his recent death, he was being held by former followers, who gave no indication when, or if, he would be turned over to government custody (Lamb, 1998). Despite the plea to put Pol Pot on trial before the international community, and the assumption that Pol PotÍs detention essentially ended the Khmer Rouge movement, resurrecting this dark piece of history may prove uncomfortable for those who took part in it, some of whom are members of the current government. Pol PotÍs genocidal regime has propelled Cambodia into social and political turmoil (Sattana, 1997b; McDowell, 1997; Kiernan, 1994). Though Norodom Ranariddh and Hun Sen pleaded with the United Nations to bring Pol Pot to trial before an international tribunal, they themselves each courted the militant Khmer Rouge to help bring them to power. By August 1997, Ranariddh had been deposed, though Khmer Rouge guerrillas had allied themselves with him in an attempt to reclaim power (McDowell, 1997). The Khmer Rouge, though significantly weaker than they were two decades ago, is still able to wreak genocidal havoc (Slevin, 1997; Sattana, 1997a). The failure of the international community to quash the Khmer Rouge two decades ago and bring its leaders to trial have clearly contributed to CambodiaÍs present state of disarray. The mere fact that the Khmer Rouge still exists should demonstrate the international communityÍs lack of commitment to both genocidal victims and international criminal law. Discussion Genocide is an indignity to the world community--an inhuman onslaught against civilization. Despite this affirmation, genocidal events continue to be committed before the passive eyes of the international community. The universal failure to take effective action against genocide has made a mockery of the most sacred values of civilization. That today genocidal perpetrators still live, unprosecuted by the international legal community, should be an indignity to any that value a peaceful global existence. The core problems of genocide transcend considerations of the fate of individual victim groups. The mitigation, if not the elimination, of these problems devolves upon the further development of international criminal law. The Genocide Convention implicitly inspires hope for ultimate justice, belying the general maxim that justice delayed is justice denied. Unfortunately, a specter of traditional, political forces may continue to thwart the initiation of effective relief, indefinitely postponing the redemption of these hopes. Until all that violate the law are brought before it, an example of genuine international criminal law, the international community must face the realization that global victimization cannot deliver commensurate universal jurisprudence. Article VI of the Convention on the Prevention and Punishment of Genocide states that, "persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed" As Yacoubian (1997) asserts however, this Article is premised on the erroneous assumption of ethical governments and criminal individuals, a reversal of truth in proportion to the degree of tyranny exercised in most countries predisposed to genocidal behavior. Modern acts of genocide have been perpetrated intranationally. That is, governmental leaders attempt to eradicate part or all of their own population. Following these attempts at genocide, the same perpetrators often remain in power. Rarely will government officials prosecute themselves. As such, the international community is occasionally obligated to prosecute the most heinous violations of international criminal law. Though Tribunals are currently convened to prosecute perpetrators of genocidal behavior from Rwanda (S.C. Res. 955, U.N. SCOR, 3453rd mtg., U.N. Doc. S/RES/1168) and the Former Yugoslavia (S.C. Res. 827, U.N. SCOR, 3217th mtg., U.N. Doc. S/RES/827), their ability to disperse justice proportional to the genocidal victimization is improbable (Yacoubian, in press). Nevertheless, these efforts have only enhanced the possibility of developing a permanent international criminal court. The creation of a permanent ICC can be greatly aided if preceded by two relatively successful ad hoc Tribunals. Clearly the jurisprudence in the field of international humanitarian law, developed by the International Criminal Tribunals for Rwanda and the Former Yugoslavia, will be of great relevance to the permanent international criminal court. Conversely, if the Tribunals are ultimately viewed as failures, the momentum that appears be providing an impetus toward a permanent ICC may be dealt a serious blow. It is now undisputed that individuals may be held responsible for their actions under international criminal law (Bassiouni, 1987). They can be arrested, prosecuted, and, if convicted, punished. Genocide, in turn, is universally recognized as a violation of international criminal law, and perhaps as the most heinous assault against civilization. No barbarity matches it in the ignominy that it generates. While several genocidal victimizers have been convicted (Yacoubian, in press; Wisskirchen, 1997), many others continue to perpetuate their genocidal mindset. The permanent ICC is, perhaps, a year away from substantiation. Given that the international community has been given a second chance to prosecute those responsible for atrocities in Cambodia, some sort of international legal response is warranted. An apropos inaugural action for the permanent ICC would be the prosecution of Pol PotÍs followers for the crime of genocide. The Preparatory Committees for the permanent ICC have determined that the Genocide Convention provides an adequate definition for that crime, and does not need to be reproduced. The merging of these two opportune circumstances -- the conception of the permanent ICC and the dissolution of the Khmer Rouge -- would provide the international community with a forum for prosecuting individuals who have escaped indictment for two decades. The results of such a prosecution would be that the global community could, after decades of arduous labor, be content in the realization that international criminal laws have been actualized, and that they are, at long last, enforceable. George Yacoubian, Jr. Is a Senior Analyst with Abt Associates Inc. and a doctoral student in the Department of Criminology and Criminal Justice at the University of Maryland at College Park. He has published several articles related to genocide and drug treatment and is the past site coordinator of the Arrestee Drug Abuse Monitoring Program in Philadelphia. © George Yacoubian Jr.
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