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Monday, July 26, 2010

Open Wounds after War

A UN-Tribunal convicted and sentenced Duch today, the first major Khmer Rouge figure defendant to be brought to justice.  I believe post-war prosecutions for human rights violations are beneficial for victims, but that there are risks as well.  When people who have committed heinous crimes get less than the maximum sentence, I think it is foreseeable that many victims will be hurt again.  On the other hand, if every defendant gets the maximum sentence, the tribunal will not appear to be objective.  Then, there are other ways to deal with post-war open wounds, such as truth commissions and civil litigation, which may occur in courts beyond the borders of the nation that experienced war (often internal civil war).  I would love to hear others' viewpoints about these issues.  What do you think is helpful for the individual victims and the nation and why?  Should U.S. courts hear post-war claims?  If so, when and why?  Should it depend on the location of victims who fled a murderous regime or their property or on whether significant remedies are available in the nation where the war occurred?  Should it depend on a green light from the executive branch? 

I am currently exploring the intersection of the "open wounds" idea and the cultural property arena.   For example, Tuol Sleng, the prison where Duch tortured and murdered so many innocents, is now a museum.  Part of its roof collapsed last week.  Some people said the souls of the dead were crying out for justice.  Certain types of property, real property and chattels, has meaning that transcends finances.  Caring for it thoughtfully can help heal post-war wounds, whereas its destruction can feel like new wounds to wartime victims. 

Another example of the intersection of human rights, war and cultural property concerns terrorism and antiquities found within the borders of modern-day Iran now located in U.S. museums.  The U.S. Congress passed ineffectual, “sound bite” anti-terrorism legislation that has foisted conflicting jurisdictional mandates upon the federal courts, sucked terrorist victims into a vacuous, exhausting drama with no chance for justice, and interfered with the President’s ability to conduct diplomatic relations in the Middle East.  One group of victims is mired in multiple jurisdictions trying to enforce an extremely large default judgment against the Islamic Republic of Iran by forcing auctions of antiquities collections housed in Harvard University, the Oriental Institute at the University of Chicago, the Field Museum of Natural History (Chicago), and the Museum of Fine Arts (Boston), among others.  Congress in this political posturing has triggered the Department of Justice to participate in the litigation counter to the victims’ interest.  The victims likely feel ignored and maligned by their own President, while Congress all along was the master puppeteer of their false hopes.  Here's a draft article on the subject.

No one believes that dealing with property ever will bring back the dead or afford full "justice" to victims, but many of us believe that the symbolism of such property is significant.  Do you have thoughts on these issues?  Can you provide other examples of post-war wounds that need redress to allow healing to occur? 

Posted by Jen Kreder on July 26, 2010 at 11:56 AM | Permalink


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Thanks to both of you for adding your voices to the discussion. I think there is a lot to learn here.

Posted by: Jen Kreder | Jul 28, 2010 10:52:41 AM

In a former life, I worked for a UN body tasked with investigating allegations of humanitarian law violations in the conflict in the former Yugoslavia to determine whether the UN should create an international tribunal to try those violations. And yes--the body and the eventual tribunal had titles about that mellifluent. I was responsible for investigating the use of sexual violence--and you can imagine the outcry both for justice through adjudication and for peace and healing through not further traumatizing the survivors by requiring any sort of adjudication--expecially if that adjudication wouldn't be "successful." I'm still working through those issues.

And they're not limited to conflicts in other countries. The federal government has recently prosecuted cases involving violent civil rights-era crimes. And other countries are attempting to prosecute U.S. officials for violations connected with our wars in Iraq and Afghanistan.

In my view, there are a number of tensions that adjudication exacerbates. Here are the negatives. The first is that the process of adjudication can be traumatic. Victims may or may not have representation in the proceedings, and recounting events may be very traumatic even with rules that try to minimize the harm that questioning by lawyers and judges may add. The second is that the adjudication may not yield the result that the public or the victims feels is warranted, and so may reopen old wounds to bring back tension and incite retaliation or repression. The third is that, especially with the passage of time, or with extraterritorial adjudications, it's not clear whose justice is really being served. Is this a victor's court rewriting history? Is it a country seeking to gain some kind of international advantage, or penalize the other country?

There are several positives, though, too. Telling one's story and having a public record made or having officials forced to listen can be very rewarding for victims even if no other remedy is provided. And a state-sponsored adjudication of guilt by a legitimate government is a powerful expression that a norm has been violated. Within a country, that can signal to the victims that the government is in fact legitimate if that is in doubt.

I'm sure there are more negatives and positives, but this was all at the top of my head.

Posted by: Marcia | Jul 27, 2010 10:29:06 PM

Reading the summary of the Chamber's judgment, it does state that "The Chamber is also satisfied that an international armed conflict existed between Democratic Kampuchea and Vietnam at all times relevant to the charges against the Accused and that the necessary preconditions for conviction under Article 6 of the ECCC Law, which concerns grave breaches of the Geneva Conventions of 1949, were satisfied."

Posted by: Patrick S. O'Donnell | Jul 26, 2010 11:51:26 PM

"Monographys" might be a new word, but I meant to type "monographs."

Posted by: Patrick S. O'Donnell | Jul 26, 2010 8:17:24 PM

Of course the successful prosecution of Kaing Guek Eav ('Duch') was in the first instance a consequence of genocide by the Khmer Rouge, in power from 1975-1979, and thus this is not a "post-war" prosecution. Nonetheless, the Khmer Rouge, as an organization and political party, was born in the aftermath of the Vietnam War, and in particular, as a result, at least in part and if only indirectly, of the intensive and illegal bombing of Cambodia that began as far back as October 4, 1965! Mark Selden quotes Taylor Owen and Ben Kiernan arguing as follows:

"Civilian casualties in Cambodia drove an enraged populace into the arms of an insurgency that had enjoyed relatively little support until the bombing began, setting in motion the expansion of the Vietnam War deeper into Cambodia, a coup d'etat in 1970, the rapid rise of the Khmer Rouge, and ultimately the Cambodian genocide."

As for the bombing of Cambodia, from October of 1965 until August of 1973, the United States "dropped far more ordinance than was previously known: 2,756,941 tons, dropped in 230,516 sorties on 113,716 sites." Alas, and as Christopher Hitchens, among others, would remind us, no one has been indicted for that war crime! The fact that Henry Kissinger remains a free man speaks volumes about "victor's justice."

I hesitate to answer your questions, especially the first group, owing to the fact that there are entire monographys addressing these rather complicated topics (Mark Drumbl, a former guest here, could attest to this)

Posted by: Patrick S. O'Donnell | Jul 26, 2010 8:10:49 PM

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