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Nuremberg-style trial becoming an anomaly; U.S. duality on concept has contributed to decline


THE SITUATION in Cambodia raises a difficult question -- one that the United Nations and the human-rights groups will face with increasing frequency in the 21st century: Will accounting for atrocities require the United Nations to appease and to consort with dictators?

On Dec. 29, Cambodian Prime Minister Hun Sen warmly welcomed Khieu Samphan and Noun Chea, the last surviving leaders of the Khmer Rouge, to Phnom Penh.

Over the protests of King Sihanouk, the prime minister said the pair should be welcomed "with bouquets of flowers," not threatened "with prisons and handcuffs." His glib assertion that "we should dig a hole and bury the past" caused an international outcry, which forced him to change his tune -- even hinting that he might support trials for the Khmer Rouge leaders.

However, Hun Sen also has said that he might want to broaden the scope of a war crimes investigation to include everything from 1970 to 1998. Does that mean that Henry Kissinger could be called to testify for his role in America's secret bombing of Cambodia? Certainly the potential political embarrassment for China, the United States, Thailand and Vietnam would be great. Such a plan would not get far, but it is an ingenious way to foil a proposed international tribunal.

It is important to remember that Hun Sen granted amnesty to Khmer Rouge leader Ieng Sary in 1996. Although the amnesty divided and destroyed the old Khmer Rouge, Hun Sen also killed Cambodia's fledgling democracy. Clearly, the fate of Khmer Rouge leaders rests upon the whims of a dictator, not with the United Nations, not with the United States and not with the "international community."

Perhaps Cambodia is the modern paradigm for the resolution of a genocidal conflict, and Nuremberg -- where Nazi war criminals were tried -- is fast becoming the anomaly. Between 1975 and 1979, the Cambodian nation was subjected to some of the most extreme human rights violations of the 20th century. In approximately four years, an estimated 1 million people, about 10 percent of the population, died.

The Khmer Rouge violated the Nuremberg Principles, the U.N. Charter, the laws of war and possibly the U.N. Genocide Convention. Although the United Nations launched the most costly and ambitious social engineering experiment in the organization's history, no individuals have ever been tried, let alone punished for the atrocities in Cambodia. More distressing, despite the United Nation's best efforts, democracy and democratic culture failed to take root in the war-torn nation. Over the weekend of July 4, 1997, Hun Sen launched a coup that deposed Prince Ranariddh, Cambodia's elected leader. In the months that followed, members of all the opposition parties were brutally tortured and summarily executed. The prince was tried, convicted and pardoned, all in absentia.

Cambodia is Southeast Asia's premier rogue nation, a place with violent crime, rampant corruption and the vilest forms of prostitution in Asia, not to mention the highest rate of new HIV infection (100 new cases per day) in the world. Cambodia is led by a dictator who thinks nothing of assassinating legitimate political opponents, fixing elections, corrupting the judiciary and destroying any remaining vestiges of democratic culture.

Recently, former presidential candidate Sam Rainsy warned against holding trials in Cambodia: "The most dangerous criminals are those in power, and this is the case in Cambodia. So you cannot hold a tribunal in Cambodia where criminals are in power, because criminals will protect criminals."

However, Cambodia is not an anomaly. Today, Rwandans brace for another regional war to spill over from the Congo. The clearest act of genocide of the post-World War II era occurred in Rwanda in 1994. In less than four months, an estimated 800,000 members of the Tutsi tribe were massacred by Hutu rivals. Although the U.N. court in Arusha, Tanzania, has been marred by corruption and incompetence, a number of high-ranking defendants are in custody.

But the international trial has been overshadowed by the trials in Rwanda. The Rwandan government has largely refused to cooperate with the U.N. court and held its own "trials." Unlike the U.N.-sponsored court in Arusha, the Rwandan courts can impose the death penalty for the more than 100,000 people in jail facing trials. Yet Rwanda is a relative success story compared with the former Yugoslavia.

In Kosovo, as in Bosnia, Serb leader Slobodan Milosevic continues to order blatant war crimes. The trials in The Hague have been overshadowed by NATO's humiliating two-year failure to capture the two most significant indicted war crimes suspects -- Ratko Mladic and Radovan Karadzic.

While Secretary of State Madeleine K. Albright continues to express a commitment to the enforcement of international criminal law, there is a growing duality in American foreign policy. Much more significant than the obvious gap between words and deeds is a growing tension between America's much vaunted ethical and legal principles and the practical policy interests of a world power. This became evident last summer during the Rome conference where the United States joined pariah nations such as China, Iraq and Yemen and refused to sign the Rome Treaty creating a permanent international criminal court.

The early to mid-1990s were heady times for those who believed that a Nuremberg-derived system of international criminal law would soon take root. But as the decade has worn on, the so-called "international community" has grown increasingly indifferent to the horrors suffered by its most powerless and politically insignificant members.

A professor of laws of war, Jonathan Bush, recently described the phenomena: "What was most troubling about this early 1990s feeling was that it overvalued what trials can do, and it completely missed the point of what Nuremberg did and didn't do." The final settlements of the horrendous and sometimes genocidal post-Cold War civil wars in Cambodia, Rwanda and the former Yugoslavia will serve as important test cases for the United Nations and the Nuremberg model for conflict resolution.

Perhaps Nuremberg is the anomaly, and statecraft continues to be conducted as it was conducted by the Athenians on the Spartan Island of Melos more than 2,000 years ago. When the island's magistrates tried to protest their imminent invasion and occupation, Athenian generals Cleomedes and Tisias stated very plainly: "The standard of justice depends on the equality of power to compel, and ... in fact, the strong do what they have the power to do and the weak accept what they have to accept."

Peter Maguire is a former teacher at Columbia University and Bard College. This article first appeared in Newsday.

Pub Date: 01/31/99

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