Extraordinary Justice, by Craig Etcheson (introduction)

CRAIG ETCHESON

EXTRAORDINARY

JUSTICE LAW, POLITICS, AND THE KHMER ROUGE TRIBUNALS

Introduction

Somehow, somewhere along the line, Cambodia took over my life. The roots of it are probably in the late 1960s and early ’70s, when my brother fought there and I was facing the possibility that I might be sent there to fight as well. This was likely the original spark.

That spark began to glow brighter after 1975, as I watched in fascination from afar while a guerilla movement seized control of Cambodia and its people. Following a vicious five-year struggle against a U.S.-backed military junta, the Communist Party of Kampuchea—popularly known as the Khmer Rouge—rapidly implemented an astounding transformation of Cambodian society. They captured the capital, Phnom Penh, on April 17, 1975, and immediately ordered the city’s two million or more residents— now designated by the Khmer Rouge as “New People”—to march into the countryside, where they would be put to work as agricultural laborers. During the evacuation of the capital and other provincial towns, the Khmer Rouge sought to screen out government officials, military and business leaders, doctors, lawyers, journalists, the Buddhist clergy’s senior monks, and other prominent individuals, who were summarily executed. The Vietnamese, Cham, and Khmer Krom minorities were soon defined as enemies.

Money, markets, religion, courts, modern medicine, family, schools, and most other existing institutions were abolished, replaced by the rule of Angkar, or the “Organization,” as the Khmer Rouge leadership styled

2 INTRODUCTION

themselves. So radical was the Khmer Rouge program that other communist parties around the world recoiled in horror. Less than four years later, the Vietnamese Communist Party decided to put an end to the Khmer Rouge nightmare by force of arms, driving them out of the capital on January 7, 1979. The Khmer Rouge regime arguably had been the most totalitarian and, in terms of its treatment of its own population, the most violent regime of the twentieth century.

It was not until near the end of the Khmer Rouge regime that I began to study the place seriously. It was another decade still before I became what some might call an “engaged scholar.” But at some point, I decided that if what Cambodia’s Khmer Rouge had done was not a crime, then by god, it should be. Over the last quarter century since then, I have remained tightly focused on one central goal: helping to bring the leadership of Cambodia’s Khmer Rouge to justice for the many crimes they committed during their brief regime, crimes that I believed included genocide. Along the way, scores of people, perhaps hundreds—journalists, academics, diplomats, bureaucrats, soldiers, and others—told me that my goal was impossible, and that it would never happen. At most, they warned, I would simply get myself killed in the process.

And there have been numerous moments along the way where getting killed seemed like a distinct possibility. It turns out that pursuing mass murderers sometimes involves consorting with people of dubious reliability. It also involves seriously pissing off some extremely dangerous people. At one point, the Khmer Rouge announced over their radio station that they had convicted me of “genocide” and had sentenced me to death, thoughtfully adding that the method of execution would be by burning. So I said to myself, All right, then, we will see if they kill me first, or I put them in jail first.

Now, as I write these words many years later, the two most senior remaining Khmer Rouge leaders have been convicted of genocide, with the verdict handed down in November 2018 in Phnom Penh. If the previous trials at this tribunal—the Extraordinary Chambers in the Courts of Cambodia, or more informally, the Khmer Rouge Tribunal—are any indication, the appeal process will take at least a year, and likely longer. We shall see if the two elderly accused survive long enough to hear the final verdict read to them.

This, then, is an appropriate time for me to reflect on this long journey toward justice, and to attempt to distill some of the many things I have learned along the way. One of the things I have learned is that certain words,

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words that may seem quite simple on the face of it—like “truth,” “justice,” and “law”—are in fact very complicated. They mean different things to different people. Consequently, getting people to agree on them can be exceedingly complicated and time-consuming. Hence, my quarter-centurylong quest.

Take the word “law,” for example. After my undergraduate studies, I briefly considered going to law school, but in the end I chose professional training in international politics, which included only a fleeting education in the law. So, as I tried to make sense of what had happened in Cambodia during the Khmer Rouge regime, I began to read more deeply in the legal literature and to study the law from varying vantage points. One of those perspectives became an immersion seminar in Washington, DC, on the sources of law, where I sought to bring about the passage of legislation in the U.S. Congress to weaken the still-dangerous Khmer Rouge military machine, and to make it the policy of the United States to support the prosecution of the Khmer Rouge leadership. Among other things, I learned the wisdom of a quip attributed to Otto von Bismarck, to the effect that those who love laws and sausages should never watch them being made—much less participate in their making. This experience acquainted me with the fact that the law is deeply rooted in politics.

And this is where things start to get a little complicated. In Western, first world societies, institutions are designed to attempt to keep politics out of the administration of justice in the courts. Most everyone except dyed-inthe-wool Donald Trump supporters, for example, was scandalized when Trump led his rallies in chants of “Lock Her Up!” And they have gone beyond being scandalized, verging on serious Constitutional concern, as President Trump has pressured the U.S. Department of Justice to investigate his defeated former political opponent. That is the sort of nonsense, it is said, that only happens in third world dictatorships.1 But here is the thing: most of the world is governed by people who operate according to those socalled third world principles, where politics trumps the law. This insight reveals that there is more than one concept of how politics should relate to the law. In fact, there are several.

Early on in my quest to bring the Khmer Rouge to justice, it began to dawn on me that the relationship between law and politics is complex, there are different ways of looking at that relation, and some of those ways are incommensurable. That is, they proceed from mutually incompatible

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premises, such that like East is East and West is West, ne’er the twain shall meet. But if I was going to find justice in Cambodia for violations of international law, then I had to find a way to make them meet. Thus I began a search for precedents, previous invocations of international law that managed to square the circle of this challenge. I needed to understand more profoundly how law actually operates in the context of an international tribunal. The obvious place to begin was with the proceedings in Nuremberg after World War II. The International Military Tribunal (IMT) at Nuremberg is held up today by many legal scholars as the greatest exercise of international political justice in history. Judith Shklar, the late Harvard political theorist, made the point that there were no laws appropriate to the scale of the criminality practiced by the Third Reich. “There are no civilized responses that are fitting, and certainly no legal norms that can cope with what the Nazis did to Europe. There certainly were none, either national or international, in 1945.”2 Although the legality of the trial has been challenged by many observers over the years, as Shklar notes, it “was internally fair.”3 Political philosopher Otto Kirchheimer seems to agree, arguing that the degree of legitimacy attaching to such a proceeding flows not so much from the origin of the court or the substantive law it applies as from the nature of the proceeding itself: “The appointment procedure and the nature and genesis of the applicable texts do not in themselves decide the character of the proceedings. When determining the type of credit and rating given to a successor trial, one must take equal account of the method of examining and evaluating submitted facts, for it reflects the tribunal’s amount of independence from momentary outside pressures.” 4 In this respect, the IMT was not merely a legitimate legal proceeding. “In terms of providing fallen foes with a legitimate forum, the IMT was unprecedented in modern history,” argues Peter Maguire, a political scientist who has studied war crimes in Germany, North America, and Cambodia. “The accused were informed of the charges filed against them and given access to the evidence, legal representation, and an opportunity to state their cases in open court.”5 In other words, according to Shklar, the IMT was a process characterized by “legalism.” Legalism “is an ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.” 6 For Shklar, legalism is an ideology,

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a worldview that shapes one’s perceptions of events and understandings about proper modes of behavior. Among the proponents of legalism, the law is seen as an autonomous sphere of social activity, divorced from and unrelated to both politics and morals, per se.

Politics is treated in legal theory in much the same way as are morals, except that here there appears to be virtually unanimous agreement that law and politics must be kept apart as much as possible in theory no less than in practice. The divorce of law from politics is, to be sure, designed to prevent arbitrariness, and that is why there is so little argument about its necessity. However, ideologically, legalism does not stop there. Politics is regarded not only as something apart from law, but as inferior to law. Law aims at justice, while politics looks only to expediency. The former is neutral and objective, the latter the uncontrolled child of competing interests and ideologies. Justice is thus not only the policy of legalism, it is treated as a policy superior to and unlike any other.7

Shklar makes the point that so deeply is legalism ingrained into Western cultural traditions that ordinary citizens of liberal societies more or less automatically engage in rule-following behavior as a reflexive course of action. This can be seen, for example, in the daily application of Robert’s Rules of Order to the conduct of meetings in civic associations, and in myriad other occasions of everyday life.8 Yet the penultimate expression of legalism is in the operation of the law. The “rule of law” is just that— organizing and judging behavior according to a pre-existing set of rules.

This points to another fundamental tenet of classical legalism, that the “pre-existing set of rules,” i.e., the law, is simply “there.” How the law that is “there” comes to be “there” is not a concern for the judge or the lawyer.

His or her job is to apply those rules as they exist. This attitude is necessary to maintain the fiction that law is utterly divorced from politics, that the two should never and do never meet or interact. The political processes that operate in the legislative world from which law emerges may as well not exist, as far as the dedicated legalist is concerned. Thus can judges effectively deny the fact that, by dint of the reality that they are enforcing the rules of the regime, they do indeed play a central role in the larger political process within which they are situated. They rather perceive themselves as neutral arbiters, above and beyond the day-to-day nastiness and arbitrariness of political to-and-fro.

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The high priests of the ideology of legalism are judges, most prototypically the judges within Western liberal systems of governance. Lesser acolytes are professors of law, practicing lawyers, civil servants trained at law, and, in the modern day, many human rights activists. This perspective on the function of law is deeply embedded in the worldview of senior officials in the United Nations Office of Legal Affairs, and also of senior staff of international human rights organizations such as Human Rights Watch (HRW), Amnesty International (AI), and the International Federation for Human Rights (FIDH). Legalism deeply colored much of the public rhetoric of the Western allies in the run-up to Nuremberg, as well as the terms in which the legacy of the Nuremberg trials has been cast.

It is a very sophisticated fish that understands that its environment is wet.

In this same way, adherents of legalism generally do not understand that they are in thrall to an ideology, defined as a system of political thought.

Indeed, those wedded to legalism tend to recoil at the very notion that they might be operating according to an ideological system, so natural does that system seem to them. But Justice Robert H. Jackson, the chief counsel for the United States at Nuremberg, was one such very sophisticated fish.

One point Jackson stressed in preparing for the Nuremberg trials was the importance of prosecuting Nazi organizations as juridical persons at the International Military Tribunal. Faced with the problem of how to deal with the hundreds of thousands of people who had some hand in Nazi depredations across the breadth of Europe and beyond, the Americans had determined that the solution would be for the court to find that the organizations to which they belonged were criminal enterprises in and of themselves. “Findings in the main trial that an organization is criminal in nature,” Jackson wrote, “will be conclusive in any subsequent proceedings against individual members. The individual member will thereafter be allowed to plead only personal defenses or extenuating circumstances, such as that he joined under duress, and as to these defenses he should have the burden of proof.”9 This was a far cry from the high-minded rhetoric Jackson had expounded scarcely six weeks previously in an address to the American Bar Association, where he argued, “You must put no man on trial before anything that is called a court, if you are not prepared to establish his personal guilt.”10 Now he was advocating that huge numbers of individuals should be condemned en masse, and that the burden of proof should be shifted from the

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accuser to the accused. In that same ABA speech, Jackson had also said, “We must not use the forms of judicial proceedings to carry out or rationalize previously settled political or military policy.” And yet, here he was doing precisely that, organizing a judicial proceeding in such a way as to carry out a previously settled political policy on the desirability of neutralizing the entire personnel of the Nazi apparatus. This attitude toward the law stands in stark contrast to the classic legalism exhibited in Jackson’s previous pronouncements.

This approach has been described by political scientist Peter Maguire as “strategic legalism.” Maguire elaborates on what he calls a “duality” in American foreign policy, a tension between law and power, in which legal concepts have been consciously and cynically deployed for strategic ends at least since the United States seized the Philippines at the turn of the nineteenth century.11 Maguire defines “strategic legalism” as “the use of laws or legal arguments to further larger policy objectives, irrespective of facts or laws, as [Secretary of War Elihu] Root pointed out, ‘It is not the function of law to enforce the rules of morality.’ ”12 Strategic legalism, then, holds that for every policy impulse, an appropriate rule can be found, or manufactured, to serve it. Thus politics and the law become connected. The father of modern political realism, Edward Hallett Carr, wrote that “politics and law are indissolubly intertwined.”13 Realism is therefore an ideological competitor to legalism, which contrariwise holds that law is divorced from politics. This is the meaning of Maguire’s concept of strategic legalism; it is realism in the sphere where the affairs of state intersect with legal affairs.

If classical legalism holds that law is superior to politics and strategic legalism holds that law and politics are “indissolubly intertwined,” then what of the perspective that politics is superior to law? This third ideological orientation on the function of law can be designated as “instrumental legalism.” The animating spirit of instrumental legalism is succinctly summarized by Vladimir Lenin’s famous dictum, “Law is a political instrument, it is politics.”14 Instrumental legalism goes far beyond strategic legalism, conceiving of law strictly as a tool of the sovereign, in which form is privileged over substance and policy over rule following. This ideological orientation is most commonly found in socialist states and other oneparty dictatorships, where law is never permitted to trump the preferences of the ruling party or the supreme leader. Perhaps the fullest realization of instrumental legalism was in the early years of the Soviet Union, but it was

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also certainly the governing legal ideology through all phases of Soviet participation in Nuremberg. Instrumental legalism spread throughout the Soviet sphere of influence in the wake of World War II, a topic to which I shall return momentarily.

THE ANALYTICAL FRAMEWORK

We have seen, then, that there are three general approaches to the relationship between law and politics. “Classical legalism” envisions law as separate from and fundamentally unrelated to politics. In “strategic legalism,” law and politics become intertwined, such that legal rules can be reinterpreted and/or created in the service of political or policy preferences. Finally, “instrumental legalism” turns classical legalism on its head.

Politics is the controlling factor, and law becomes merely another political tool. Western liberal democracies rarely, if ever, display the hallmarks of instrumental legalism. Likewise, communist, totalitarian, and authoritarian regimes generally do not behave according to the dictates of classical legalism. All, however, can occasionally engage in strategic legalism. These three incommensurable legal ideologies—classic legalism, strategic legalism, and instrumental legalism—combine to form a framework or model that describes the behavior and interaction of states, international organizations, and nongovernmental organizations across the process of creating, enacting, and completing war crimes tribunals.

In the negotiations to create international war crimes tribunals, as well as during the operations and the aftermath of those tribunals, many interested parties—state, interstate, and nonstate—will seek to wield influence in shaping unfolding events. Each party will engage in this process carrying the assumptions of one, and sometimes more than one, of these legal ideologies. The interactions among the various parties and their ideological proclivities will shape the outcome of any particular exercise in postconflict international justice. Let us turn next to a consideration of how a legal ideology originally developed in the crucible of the Russian revolution could eventually end up in Cambodia, which in turn would profoundly shape the design and conduct of the Extraordinary Chambers in the Courts of Cambodia.

Praise for Extraordinary Justice “Extraordinary Justice hands down the final verdict on the UN’s controversial ‘mixed tribunal.’ Starting as an academic observer during the 1980s, Craig Etcheson worked as a fearless and tireless killing fields investigator during the 1990s and then played a key behind-the-scenes role for the UN during the proceedings. Simply put, nobody knows more about the Khmer Rouge war crimes trials than Etcheson. This is a remarkable, three-dimensional study of the legally simple but politically complex proceedings that took longer to try five defendants than the Allies did to try thousands of war criminals after World War II.”—PETER MAGUIRE , author of Facing Death in Cambodia “Few have witnessed or studied the rise, demise, and prosecution of the Khmer Rouge as Craig Etcheson has done for more than three decades. Extraordinary Justice is a gripping eyewitness account of the Khmer Rouge leadership’s final coda in front of domestic and international justice, however imperfect that justice might be. It will be the definitive reference text for years to come.”—SOPHAL EAR , author of Aid Dependence in Cambodia: How Foreign Assistance Undermines Democracy “In this absorbing, persuasively argued book, Etcheson draws on over thirty years of involvement with Cambodia and on his prolonged association with the so-called Khmer Rouge Tribunal, giving his readers a clear idea of what happened at the Tribunal and the daunting challenges it faced.”—DAVID CHANDLER , author of A History of Cambodia “Etcheson is one of only a handful of people on the planet who, for the last four-plus decades, has immersed himself in the question of what the Khmer Rouge did while in power from 1975 to 1979 and how to bring them to justice for their crimes of genocide.

Extraordinary Justice is a must-read for those interested in how the international community uses the cumbersome rule of law to convict those who thought they could get away with mass murder.”—MICHAEL HAYES , former publisher and editor in chief of the Phnom Penh Post ISBN: 978-0-231-19424-2

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