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In Cambodia, as in Bosnia, Issue Is Punish or Pardon

September 15, 1996|Floyd Abrams and Diane F. Orentlicher | Floyd Abrams, a constitutional lawyer and professor of First Amendment law at the Columbia Graduate School of Journalism, and Diane F. Orentlicher, law professor and director of the War Crimes Research Office at American University, are the authors of "Kampuchea: After the Worst" (Lawyers' Committee for Human Rights)

NEW YORK — Too often in the second half of this century, countries racked by crimes against the human condition have faced a tormenting dilemma: whether to compromise the law of universal conscience in the service of national unity. From Poland to the Philippines, Uruguay to Uganda, and South Africa to South Korea, Argentina and Spain, fledgling democracies emerging from dictatorship have had to balance the claims of historic justice against the continuing risks of destabilizing force and national division. None of these countries has found a wholly satisfactory solution. Yet, as the recent conviction of two South Korean leaders in a 1980 massacre reveals, this is an issue with an enduring claim on national conscience if it is not satisfactorily addressed.

Recent events in Cambodia have once again placed the punish-or-pardon dilemma in the foreground of universal conscience. When Ieng Sary publicly confirmed his defection from Pol Pot, leader of the murderous Khmer Rouge, he presented Cambodians with a nearly unendurable choice: Should they seek reconciliation by acceding to his demand for amnesty, or make him stand trial for genocide. Whatever Cambodians decide, they will pay dearly. This much is clear from the experiences of countless countries that have recently confronted their own versions of the quandary. It is thus shamefully ironic that the international community has failed to support the demands of justice in the one place where it seems the surest foundation for lasting peace--in Bosnia.

Both Cambodia and Bosnia are struggling to reunite after years of violent division. In Cambodia's case, the violence has lasted decades. But the most traumatically savage period remains the mid-1970s, and it is for his conduct in that period that Ieng Sary now asks his country to accept legal amnesia.

A dozen years ago, we had a rare--and memorable--opportunity to confront Ieng Sary about that period. As the first human-rights monitors allowed to inspect areas of Cambodia held by the Khmer Rouge after the Vietnamese invasion of 1979, we met twice with Ieng Sary at his guerrilla stronghold of Phnom Malai.

He was a charming host. We were served a sumptuous late-night Chinese feast at a surrealistic dinner for 12 in the middle of the jungle. The setting presented questions of etiquette we had never before encountered. As our host demonstrated how to use our coasters to prevent elephantine bugs from crawling into glasses of imported champagne, we broached the matter of genocide. Ieng Sary said he realized the Khmer Rouge "owe the world an accounting" for what he termed "the unfortunate events of the 1970s." "But as you know," he continued, "Pol Pot is very busy right now fighting a war." The accounting would have to wait.

Last week, Ieng Sary finally offered his account. Though he is widely described as the second-most powerful person in the Khmer Rouge regime--believed responsible for as many as 2 million deaths--he avowed he was not personally responsible. And, he added, unless he is granted a royal amnesty, he would not surrender to governmental authority the area he now controls. Having defected with perhaps half the Khmer Rouge's force, his offer is tempting.

The dilemma presented is painful--and painfully familiar. For some countries tenuously emerging from dictatorship, immunity for past crimes may be the wiser course. But when the choice is too easily made in the direction of overlooking criminal conduct in the service of national reconciliation, the moral and political costs are high.

Bosnia has at least been spared this dilemma--or so it seemed when the Dayton accords were signed last November. Though it had been predicted that the chief architects of "ethnic cleansing" would be granted immunity in exchange for peace--Bosnia's version of the "impunity for stability" calculus--the accords required all parties to cooperate fully with the work of the War Crimes Tribunal established by the U.N. Security Council in 1993. By then, the tribunal had indicted two men thought largely responsible for the Bosnia war crimes--Ratko Mladic and Radovan Karadzic.

The accords recognized that lasting peace could emerge only from a foundation of justice. After years of sadistic cruelty at the hands of lifelong neighbors, Bosnia's ethnic groups could scarcely be expected to reunify as envisaged by Dayton--or to refrain from violently settling scores--unless atrocious crimes were judged by a credible process.

The war-crimes commitments undertaken at Dayton reflected another hard-headed recognition: As long as they elude arrest, indicted war criminals like Mladic subvert the peace process. In fact, the accords could not have been reached but for the tribunal--whose indictment of Karadzic and Mladic precluded them from participating in the negotiations.

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