Can monsters be deterred? Or are the people who commit the most unthinkable crimes against humanity mass murder, torture, genocide so hell-bent on evil that the normal considerations of common criminals, such as fear of being caught, don't apply? If Pol Pot were alive today, would he be deterred from his epic mass murder by the international laws against genocide or the tribunals for crimes against humanity that did not exist when he was working the killing fields of Cambodia in the 1970s?
The question is not as academic as it sounds, particularly when considering the case against one of Pol Pot's most ghastly lieutenants, Kaing Guek Eav, better known as Duch. Now 64, Duch has been in prison since 1999, but he was finally charged Tuesday with crimes against humanity for his role as commander at Tuol Sleng prison, the secret Khmer Rouge jail where at least 10,000 men, women and children were tortured and killed. Only a handful survived. But many photographs taken of the victims before their interrogations have survived, and the images are haunting.
The impunity of the Khmer Rouge leaders believed responsible for exterminating 1.7 million people is one of the great outrages of the 20th century. Pol Pot died in 1998, but two of his henchmen, Nuon Chea and Khieu Samphan are still living freely. Duch's testimony against them is expected to be valuable if only for historical purposes. His defense is one that was discredited at Nuremberg: He was just following orders.
So, does the prospect of a trial for Duch, even 30 years after his crimes, send a message to murderous leaders around the world that the painfully slow arm of international law will catch up with them eventually?
Well, yes. But the effect of that message is unfortunately not as clear-cut as we would like it to be. For one thing, the proliferation of international tribunals means that more war criminals in more corners of the world are being indicted than ever. Problem is, they're not all being caught.
Former Serbian officials Radovan Karadiæ and Ratko Mladic have been hiding out for 12 years despite their 1995 indictments on genocide charges.
"The Karadiæ and Mladic precedent is if you can keep your head down long enough, the international community will lose interest and you'll get de facto immunity," said international rights lawyer Paul Williams. "They'll probably both die of heart attacks before they're arrested. So the Duch case is even more important because it's an antidote to the sense of impunity that you see."
Also still on the loose is Uganda's unspeakable Joseph Kony, who still heads the Lord's Resistance Army despite his 2005 indictment by the International Criminal Court. Some have argued that Kony's indictment backfired, because it has made him less likely to agree to a peace settlement for fear that stability in Uganda will lead to his arrest and transfer to The Hague. Similarly, there is widespread speculation that fear of an international tribunal is one of the reasons the geriatric tyrant Robert Mugabe refuses to step down. And there is, after all, a precedent for such paranoia: After losing power, Slobodan Milosevic was spirited off to The Hague even before the Serbian Parliament had time to approve his extradition.
It's clear that the trials of Milosevic, Sierra Leone's Charles Taylor and Iraq's Saddam Hussein have gotten the attention of other murderous regimes. Officials in Khartoum have asked international lawyers for copies of the U.N. Genocide Convention and Sudanese President Omar Hassan Bashir is reportedly nervous about being indicted in connection with war crimes in Darfur.
But it's naive to believe that fanatical zealots like Pol Pot and Kony would cease and desist merely because they might end up in The Hague in 20 years, any more than Charles Manson would refrain from mass murder because California had a murder statute.
The difference, though, is that mass atrocities cannot be committed by one man alone. Genocidal leaders need people like Duch to follow orders lots of them and the evidence suggests that the followers are usually less fanatical and often can be induced to cease or defect. "You always have to have a sense of accountability," said Don Steinberg, a former U.S. ambassador to Angola now with the International Crisis Group. "Even in the societies that most want to put the past behind them, individuals have to be held responsible for their actions.... And the societies that go through this have to be very, very strong."