Sixteen years after it began – and half a century after Cambodia’s Khmer Rouge claimed perhaps 2 million lives – the UN-backed tribunal on its crimes has ended. It concluded its work on Thursday, having cost $337m and convicted just three men. Other cases were dropped, or blocked by Cambodian judges. Pol Pot, the genocide’s chief architect, died without facing justice. Some survivors feel the process fell short of already low expectations.
One day later, UN legal experts told the body’s human rights council that Russian soldiers had raped and tortured children in Ukraine, among other war crimes. Will victims there ever see justice? The gravest matters to the international community – crimes against humanity, war crimes and genocide – are the hardest and slowest to pursue. Those who are most responsible are the least likely to face justice, for the same reason: their power. Legal processes are inevitably politicised and imperfect. Even when justice can be achieved, it cannot revive the dead, or erase their pain, or wipe away the trauma of survivors. Yet families want, and societies need, truth and accountability – albeit slow, flawed and partial. It can bring a kind of resolution, if not comfort. It helps to place a marker in history, re-establishing a line that humans must not cross.
The Cambodia tribunal opened in 1998, the year that the Rome statute was adopted as the basis for the international criminal court (ICC). A longstanding proposal had gained fresh impetus in the wake of genocide in Rwanda and Yugoslavia (though those were addressed through specially created tribunals). But it was weakened by the refusal of the US, China, Russia and others to support it, and almost all its initial investigations focused on Africa. A sense of despondency set in as the atrocities in Syria unfolded, Bashar al-Assad’s regime perpetrating atrocities with impunity.
Yet efforts have persisted and a German court this year jailed a former Syrian intelligence official for life for crimes against humanity on the basis of universal jurisdiction. There may be signs of renewed purpose in the ICC and among NGOs, lawyers and scholars. The ICC launched investigations into alleged war crimes in Afghanistan – including by government forces and US troops, though it later said it would focus on the Taliban and Islamic State – and in the Palestinian territories. Within four days of the invasion of Ukraine, the chief prosecutor, Karim Khan KC, announced there was a reasonable basis to believe crimes within its jurisdiction had been committed. A 42-strong ICC team is on the ground, along with experts from several countries.
Ukrainian authorities have already prosecuted Russian soldiers, with the first convictions in May. It is easier to pursue perpetrators while they are still on Ukrainian soil. But urgency also comes from the knowledge that evidence must be found and saved, and that establishing culpability now might just help to deter further crimes like those in Bucha or uncovered last week at Izium. New methods and practices have been used in Syria and now Ukraine to establish accountability and help to accurately record evidence. There are growing calls for a special tribunal to prosecute the crime of aggression, which the ICC could not investigate, allowing Vladimir Putin to be held directly accountable.
The paradox is that the grim and laborious work of seeking justice must begin at once. The pursuit of accountability requires both urgency and tenacity – acting now, and persisting for years or decades.
