Are International Tribunals worth the money?

I am currently working around the Khmer Rouge Tribunal (formally the ECCC) and the most frequent questions I get are, “do you think it's useful?” and “Isn't it a waste of money?” These are issues that surround all of the international tribunals, from the International Criminal Court (ICC) to the hybrid and ad hoc tribunals for the former Yugoslavia, Rwanda, East Timor, Sierra Leone, Lebanon, Cambodia, and now Bangladesh. Particularly, as in Cambodia, when the tribunal convenes so long after the crimes alleged (30+ years) and the Accused are so old (79-85-years-old), many people argue that we just need to let the country move on, and trust that the perpetrators will die soon and will not commit any more crimes before they die. Also, think of all of the mines you could remove with $150 million. (That's about how much the ECCC has spent since it began investigations in 2006 until February 2012).

However, proponents of the courts argue that, by holding the leaders accountable, we can set an example of the rule of law in countries that have lost ROL, and we may deter leaders in the future from committing these crimes.

The ICC just issued it's first ruling, after 10 years in existence. (Thomas Lubanga found guilty of recruiting child soliders. Great summaries here and here.) The BBC reports that the Court has spent $900bn to date. In fairness, it's not like the Court spent $900bn on one case. The ICC has issued 15 indictments, and so is working on 15 cases, as well as those additional cases that the Prosecuter is investigating. Furthermore, unlike the average domestic court, the ICC is investigating crimes that happened all over the world (in theory. In actuality, all of the current ICC cases are for alleged crimes in African countries.) and that investigation is complex and costly. Still, the court is hideously expensive.

From what I see in Phnom Penh and Cambodia as a whole, the trial is worthwhile. Every Cambodian who I meet and talk to about my work supports the trial, and only want to know more about it, and what the crimes are, and why it's taking so long, and what punishments could be dealt out. True, this trial will not provide closure for all Cambodians, and many may be disappointed with the process or the sentences. But the reality is that no punishment can balance what the Accused are alleged to have done. The value in the court is in acknowledging that those crimes were done, certifying them in a court of law, and holding the perpetrators accountable in a more humane way than they treated their countrymen. It's about setting an example of the rule of law, and opening the discussion of what happened to help the country heal.

And that is working. I recently got back from a trip to the north and Siem Reap (Angkor Wat) and several people cared enough to brave my horrible Khmer to discuss the court and what it meant for the country. These people said that, because of the Court, it is now becoming ok to talk about what happened. The country has seen an explosion of documentary films about the Accused in the past year. (Including “Duch: the Master of the Forges of Hell”; “Enemies of the People”; “S-21: The Khmer Rouge Death Machine”; "Facing Genocide." While some of these were produced several years ago, they are only now being released in Cambodia.) NGOs providing other means of processing and finding healing are popping up everywhere.

Regular people are asking questions like “why is the Accused given an air-conditioned cell and three meals a day, while I don't have enough rice to feed my family?” Answer: fair trial rights and the right of the Accused to humane treatment. (See KMF "Facing Justice" Episode 8, 17:00 on for more televised discussions.)

Projects like the ECCC Handbook on Criminal Procedure Project—which is annotating all of the ECCC rulings with their precedents and ties to Cambodian and international law in order to have a comprehensive precedent reference for students and practitioners—and the Fair Trial Club—which trains young law students, lawyers and NGO workers in the basics of fair trial rights—are defining the legacy of the Court in bolstering ROL in Cambodia.

People are talking about it, asking questions, and learning about what a rule of law entails, and that is the lasting legacy of these courts and what makes it all worthwhile.

Insurgency as Cultural Production

I wanted to bring this great article, by Alex Verschoor-Kirss over at Small Wars Journal, to everyone's attention. He uses the example of Estonian resistance to Soviet occupation to make the point that insurgency can be about reaching cultural goals as much as it can be about reaching political goals. I want to summarize a bit of his argument (seriously though, go read the whole article, it's really good), and then talk about how it applies outside of Estonia.

Verschoor-Kirss makes an important point about form as function in insurgency. "The form that [the Estonian resistance] took, that of opposition to the hated Soviet or Russian invader" he writes, "was of equal importance to the function of the conflict, regaining independence." The form of their resistance, in other words, was itself a function. As the Soviet occupiers sought to eliminate Estonian culture, carrying on the fight against the Soviets gave the insurgents the power to define Estonian-ness for themselves. Not only that, they were able to give Estonian-ness a distinctly insurgent character. Quoting Verschoor-Kirss again, "To resist Soviet aggression can in many respects be seen as being Estonian, and to be Estonian was something that the Soviet authorities tried to repress. The [Estonian resistance] thus was as much a battle of symbols and cultures as it was about actual fighting."

The literature of insurgency is much quicker to acknowledge the power of the form of a conflict to dictate the culture of those who are involved in or relate to the conflict than that of the counterinsurgent. Frantz Fanon, for example, extolled the culturally transformative power of violence. Perhaps an even better example is Martin Luther King Jr, who used non-violent resistance as a cultural touchstone, creating a cultural space for African Americans between the separatism of Malcolm X and the gradualism of the NAACP (to oversimplify the matter massively). That character of that cultural space was a key component in the political victories King eventually won, and the segregationists failure to define that space away as "communist" and "un-American" was a major factor in their political defeat. Counterinsurgent thinkers, as Verschoor-Kirss point out, have tended to focus more narrowly on political measures as indicators of success or failure in insurgency.

Quoth Paul Yingling (and really everyone else who's given it any thought from Clausewitz on down), "there is no such thing as winning militarily and losing politically." I'm certainly not prepared to say that there's no such thing as winning a war politically and losing it culturally, but I do think that counterinsurgents tend to discount both the cultural impact of insurgency and the potential for that cultural impact to transform into political impact down the road. The form of counterinsurgency matters in the cultural aspect as much as the form of insurgency does, and it seems a mistake to leave that out of the counterinsurgency discussion.

Peter J. Munson, the new editor over at Small Wars Journal, made a similar point in his introduction to Verschoor-Kirss's article. "This [culture, in Verschoor-Kirss's usage] is not meant in the simple dimensions of culture that the U.S. too often placates itself by exploring: right hand/left hand, soles of feet, hand on heart, simple linguistics." These are more the rudiments of etiquette than an understanding of culture. The US military has largely failed in constructing systems to delve more deeply than those rudiments, but I believe we should continue trying. Culture, if we actually study it, can tell us more than how to conduct a meeting. It can tell us why it seems that some combatants continue to fight for the sake of fighting, why some (IRA hardliners come to mind) would rather continue to fight with no promise of political victory rather than accept political compromise. It can help us, in Director Petraeus's parlance, separate the reconcilables and the irreconcilables. Most of all, it can tell us if our near-term political gains or losses are likely to stand the tests of time or if a war's effect on culture will eventually undermine its effect on politics.

On The Passing Of Anthony Shadid

Note: This was never intended to be the first post on Unknown Unknowns, but when I heard last night of Shadid's death I felt compelled to write something. Forgive my getting things off to such a sad start. We'll soon return to our intended fare of irreverent policy discussions.

I never met Anthony Shadid and I am not as familiar with his work as anyone who takes an interest in the Middle East should be, yet I find that news of his recent death from an asthma attack while reporting in Syria has moved me to tears.

Surely his youth, the fact that he leaves behind a wife and two children, and the senselessness of his death in light of the important work he was doing in Syria contribute to the shock of his death, but there is more to it than that. There are certain public intellectuals who radiate a sense of hope in their field in ways that cannot be measured in citations or accolades or even personal remembrances. To me, Anthony Shadid's relentless integrity, his determination to write the most complete stories from the most broken places, and the love he evinced from those who knew him shone a guiding light that it seemed others might follow into the intellectual and political abyss of Middle Eastern studies. His example offered us chance at a future where our discussions of the mid-east could be based in fact and empathy. Our country and our world would improve if we could follow that example, but today I feel that the light, to extend a tired and inadequate metaphor, has been snuffed out.

I pray today for him and for his family and that those who felt his influence may carry on his legacy.

Welcome

Welcome to Unknown Unknowns, the blog created by three recent college grads in the hopes of discussing issues of security, diplomacy, and human rights with the wider internet world. We're friends, but we each come at the issues of the day from a distinct perspective and I doubt you'll have to read us for long before you'll see some of those perspectives clash.

Expect to see upcoming posts on transitional justice in Cambodia, managing expectations for American decline, and the closing of the US Embassy in Damascus. In the long term you'll see guest posts, dispatches from abroad, and (and this is a blog goal) an appearance from one of our associated twitter accounts in Twitter Fight Club.

We hope you find us entertaining and thought provoking, and we hope even more that you'll engage us with your comments, e-mails and tweets. Shouting into the internet void is disheartening if you get no response.