AIDP Blog

Efforts to creat a hybrid war crimes tribunal for Cambodia have been hampered by local and international politics, funding issues, and competency concerns. Thus, although a court has been approved and partially staffed, efforts to move forward on prosecuting former Khmer Rouge leaders for the genocide of the 1970’s are shaky at best. This new story, reported in the International Herald Tribune concerning the plunder of mass graves, adds a new layer of difficutly for the nascent Cambodian Court: wanton destruction of evidence. The court hasn’t jurisidiction over the looters and yet is not sufficiently staffed to examine the killing fields in total…

Villagers find and loot Cambodian killing field
International Herald Tribune
By Seth Mydans, May 15, 2007

SRE LEAV, Cambodia: Researchers are investigating a long unknown killing field in Cambodia with the graves of thousands of Khmer Rouge victims from the 1970s. But local villagers found it first. By the time the researchers arrived last week, some 200 graves had been dug open and the bones scattered through the woods by hundreds of people hunting for jewelry. “Everyone was running up there to dig for gold, so I went too,” said Srey Net, 50, describing what seems to have been a communal frenzy that seized this poor and isolated village. “If they can dig for gold, why can’t I?”

It was the first such raid the researchers had recorded in the thousands of burial grounds they have documented around the country. Altogether 1.7 million people died under Khmer Rouge rule from 1975 to 1979 from starvation, overwork and disease as well as torture and execution. “People said, ‘This goose has no owner,’ ” said Ouk Souk, 60, a farmer. There were few valuables in the graves, but they took whatever they could find.

The invasion of what has been almost sacred ground suggests that past traumas are beginning to fade even as Cambodia prepares to open a long-delayed trial of some Khmer Rouge leaders, said Youk Chhang, a leading expert on the period. “I think it has become a memory, rather than a physical thing any longer,” he said, speaking of the pain of the past. “There will be no more tears. There are no more feelings to express - only a flash of memory when you see a piece of bone.” For younger Cambodians, who know remarkably little about the Khmer Rouge period, he said, “It’s just a dead person.”

Youk Chhang heads the Documentation Center of Cambodia, which has researched the killing fields and amassed a huge archive on the Khmer Rouge years. Visiting here on Thursday, two of his investigators said there could be as many as 9,000 bodies buried in the woods behind this village about 150 kilometers, or about 100 miles, south of Phnom Penh. Though the pain of the past may have faded, the bones and the ghosts of Khmer Rouge victims still terrify many rural people. After the assault on the burial ground, this village seemed filled with remorse and dread. The digging has stopped and several people said they had been awakened at night by screams from the graves. “People heard voices calling out, ‘Help me! Help me!’ ” said Svay Saroeun, 50, a deputy village chief. “Maybe they are angry at the villagers for digging up their graves. Or maybe they were tortured to death and now they are being tortured again by people who are disturbing their sleep.”

Srey Noeun, 47, a farmer with four small children, said she was unable to sleep for three nights after she dug two small gold earrings out of a grave. “I’m afraid that the owner will take revenge on me because she died with nothing but her earrings and now I have taken them,” Srey Noeun said. “She’ll say, ‘Please give them back. They are all I had.’ ” Srey Noeun said she sold the earrings as quickly as she could and bought things she needed: two kilograms, or 4.4 pounds, of pork, a sack of rice, oil for cooking and for lamps, salt, pepper, seasoning and milk powder for her youngest child. “We never have enough rice,” Srey Noeun said. “Normally we can’t afford to buy pork.” The treasure unearthed after nearly a week of digging seemed paltry: one gold necklace and 27 small gold earrings. But it was dazzling to people who live without electricity or running water, far from the nearest clinic, school or paved road.

The luckiest villager was Pen Chia, 27, who recovered the necklace and sold it to buy a cow. But most people found nothing but shattered skulls, bits of bone that looked like broken sticks and scraps of moldering clothing. “I dug all day without eating,” said Pron Sythoeun, 36, a farmer. “I dug for four days. And I got nothing.” He has gone back to poke through the scraps with a stick, but few other villagers have returned except to light incense and pray for forgiveness from the restless souls.

The killing field sits empty now in the pouring rain, cratered with shallow pits and mounds of freshly turned red mud, silent under the trees except for the lowing of thin white cattle in a nearby field. Some villagers said they had not known it was there, although its existence had not been a secret. It had lain there beside them through the decades, like the suppressed traumas of the past, a blank spot in their minds. They rediscovered it by chance a week ago, when a team of Vietnamese soldiers came by, searching for the remains of their own missing men. The Vietnamese Army drove the Khmer Rouge from power in 1979 and then occupied Cambodia for a decade.

Helping them dig, Pon Khlaut, a farmer, saw the glint of an earring in a pit. When he showed it to his neighbors, they abandoned their homes and fields and rushed to the woods to dig. Among them was Srey Net, who knew the graveyard well. As a teenager, she said, she was enlisted to bury the bodies of people who died in labor gangs building one of the huge irrigation dikes that were a particular folly of the Khmer Rouge. Nearly 20,000 killing fields, holding anywhere from a few bodies to thousands, served as burial grounds for Khmer Rouge victims as well as execution sites. Like many of the victims, Srey Net said, the people here died from accidents, exhaustion and starvation as well as fevers, malaria and an epidemic of diarrhea. Many of them were sent to a small, crude clinic nearby from which she said few emerged alive. “Whenever a patient died, they would ring a gong or blow a whistle,” she said. “Even in the middle of the night, I had to run up there to help carry away the bodies.”

Last week she was among the graves again, whacking at the ground with a hoe, unearthing what may have been some of the same bodies she had buried years ago. And then, finding no gold, she reverted to her former role, retrieving and reburying some of the bones. “I felt pity for them, that’s why I collected the bones,” she said. “They were scattered all over the place.” Srey Noeun, the farmer who sold two earrings to buy food, also had a connection with the bodies in the graves. Like many of them, she had been a member of a work brigade here, but unlike them she had survived. “I went to see what was happening but I didn’t have a hoe,” she said of the raid on the burial ground. “I said to someone, ‘Give me your hoe, I want to dig too.’ ”

The first thing she found was clothing, she said, then bones, then gold. “I dug downward to the feet and then I started upward,” she said. “I found the teeth and the skull. I moved them down around the feet and I cleared the ground around them with my hands. I saw the earrings, first on the left and then on the right.” She said they were exactly like the small gold rings she wore in her ears as a girl until they were taken from her when she was forced to join a work brigade. Srey Noeun said she had no idea whether she had ever met the woman whose grave she raided and she said she did not know why the Khmer Rouge had let the woman keep her earrings.

A somewhat scary story from FDD:

An article by Kevin Whitelaw in US News & World report says that al Qaeda’s top leaders, once on the run, have regrouped

U.S. intelligence agencies have completely revised their assessment of al Qaeda the article says.

And they have reached an alarming conclusion: Bin Laden has a safe-haven in Pakistan and he may be stronger than ever.

The shift is dramatic. Two years ago, the head of the Defense Intelligence Agency, described al Qaeda leaders to Congress as battered and isolated.

Now, the DIA says, “Al Qaeda retains the ability to organize complex, mass-casualty attacks and inspire others,”

“Al Qaeda has consistently recovered from losses of senior leadership.”

Folks, below is a cross-post from Prawfsblawg.

There’s been a lot of talk about the referral by the United Nations Security Council of the Darfur situation to the International Criminal Court (ICC).  Yet, the ICC is involved in more than just Darfur.  Its first case, now moving toward trial, involves a Congolese national, Thomas Lubanga Dyilo, who is in custody at The Hague. Lubanga is accused as a co-perpetrator of conscripting and enlisting child soldiers to fight in Ituri, a region in north-east Democratic Republic of Congo (DRC).

On January 29, 2007, a Pre-Trial Chamber of the International Criminal Court confirmed charges against Lubanga.   Although the Lubanga Pre-Trial Chamber moved the case to trial, the judgment was controversial. In part, this was because the judges held certain phases of the Congolese conflict to be international as opposed to internal in nature, owing to the presence of Ugandan and Rwandan troops.  International criminal law differentiates internal from international armed conflict. The Pre-Trial Chamber in fact substituted a charge brought by the Prosecution with a slightly different charge applicable in international armed conflict. This substitution, however, has considerable implications for the burden of proof the Prosecution will have to discharge at the actual trial.

The Prosecution is appealing the ruling. It does not believe it can prove beyond a reasonable doubt that an international armed conflict actually existed at the relevant time.  An American Society of International Law Insight reports that the Prosecution, in its application for leave to appeal, pleads that the Pre-Trial Chamber “is effectively forcing the Prosecution to, contrary to its professional assessment, include a specific crime in its charging instrument and prove it at trial.”  Controversy also has separately emerged on questions of defense representation.

This is not the first time that tension has emerged between judges and the Prosecution in regard to this case. An earlier decision on victims’ involvement, in which the judges sided with a generous interpretation of the provisions of the ICC’s constitutive document (the Rome Statute) permitting victim participation in the proceedings, also encountered Prosecutorial resistance.

These intra-institutional tensions, although understandable, suggest that the face of international justice is not monolithic. As a result, it seems short-sighted to speak of the “ICC” as a billiard-ball, namely as a unified force in international law and politics.  In addition, is there cause to be concerned that deeper questions regarding the impact of the Lubanga case on justice, integration of local communities, and reconciliation in the DRC may become sidelined through these juristic shuffles?

NOTE: This is a slight correction to an earlier post, the event will be held on May 17th.

Current legal and legislative efforts to restore habeas rights for the Guantanamo detainees will be the focus of a free panel discussion at the National Press Club Thursday, May 17th, from noon to 2. p.m. Details below. The event will be recorded or become available by podcast. For information on audio or podcast or to RSVP contact: tbeach@constitutionproject.org or (202) 580-6920

The Constitution Project & The Brennan Center for justice
Present: And Justice for All…?:A Discussion on Restoring Habeas Corpus Rights to Guantanamo DetaineesEdward R. Murrow RoomNational Press Club

529 14th Street, N.W., Washington, D.C.

The controversial provisions of the Military Commissions Act that denied detainees at Guantanamo Bay habeas corpus rights have been the subject of a passionate and protracted debate both on and beyond Capitol Hill. Join our distinguished panelists from across the political spectrum for a discussion of the legal and policy implications of denying habeas corpus to these detainees, as well as the possibilities for restoring those rights. Those who have a basic understanding of the questions surrounding the Military Commissions Act but seek a more detailed understanding of the legal complexities of the issue are particularly encouraged to attend. This event is open to the press.

Panelists:

Jonathan Hafetz, Litigation Director, Liberty and National Security Project, Brennan Center for Justice;

Counsel to Several Detainees Held by the United States

Lieutenant Commander William C. Kuebler, Judge Advocate General’s Corps, United States Navy,

Defense Counsel, Office of Military Commissions

William H. Taft, IV, former Legal Advisor, Department of State, George W. Bush Administration

Hon. Patricia Wald, former Chief Judge, U.S. Court of Appeals for the D.C. Circuit

Moderator: Sharon Bradford Franklin, Senior Counsel, the Constitution Project

A light lunch will be served

There is no charge for this event.

A new site has joined the blogosphere.  The International Law Reporter, run by Professor Jacob Cogan at University of Cincinnati College of Law.  Professor Cogan describes the blog as this:

International Law Reporter is a new blog on scholarship, events, and ideas in international law, international relations, and foreign affairs law.

Looking at the posts thus far it seems to be a definite addition to the RSS reader!

Welcome to the blogosphere International Law Reporter.

Hi AIDP community –

The good folks over at prawfsblawg have invited me to a couple of week stint as a guest blogger, so it’ll be interesting to air some developments in international criminal law in a forum populated (mostly) by non-international law types.

I will also cross post here.

My first post at prawfsblawg was on the question of Peace vs. Justice in Uganda. A slightly abridged version follows below:

In my book Atrocity, Punishment, and International Law (…thanks, Kevin, for the plug over at Opinio Juris) I explore some difficult questions regarding the role of prosecution and punishment as responses to genocide and crimes against humanity.  And I question our reliance on liberal legalism - in particular Westernized trials and correctional models that focus on incarceration - as a method to seek justice in the wake of such tragedies.

One interesting case study which keeps on unfolding is Uganda. For the past 20 years, northern Uganda has been subject to a conflict between the Ugandan government and a rebel group called the Lord’s Resistance Army (LRA).  The LRA campaign has brutalized villages in northern Uganda. Tens of thousands of civilians have been killed and well over one million residents displaced. The LRA has conscripted child soldiers and used sexual violence in its campaigns. Four of its leaders have been indicted by the International Criminal Court (ICC). For at least two years or so, albeit in halting fashion, the LRA has been involved in peace negotiations with the Ugandan government. The ICC indictments have become a sticking point in the discussions. The LRA balks at signing a peace deal so long as the indictments remain open. And, although the Ugandan government initially referred the LRA violence to the ICC, it, too, is hedging regarding the ICC indictments.

What to do? Does the pusuit of justice, as seen through prosecution at the ICC, get in the way of peace?  Or is peace impossible without justice?

Two interesting additional facts:

1. Many people who actually live in northern Uganda, for example among the Acholi population, support justice. But for these people justice means traditional community methods of dispute resolution and integration — particularly for child soldiers — that are deeply symbolic, communicative, and restorative. Some community members have implored the ICC not to continue with the indictments.

2.The Ugandan government, although having referred LRA violence to the ICC, was found responsible by the International Court of Justice in 2005 for breaches of international humanitarian law and for unlawful use of force in its own military incursions into a neighboring state, the Democratic Republic of the Congo.

A slightly longer version with comment(s) is accessible through: http://prawfsblawg.blogs.com/prawfsblawg/2007/05/uganda_peace_vs.html#comments

Charges were referred today against Salim Hamdan, Osama Bin Laden’s bodyguard and driver.

From a DoD Press Release:

The Department of Defense announced today that charges were referred to a military commission in the case of Salim Ahmed Hamdan by the Office of Military Commissions Convening Authority, Susan J. Crawford.

 

The convening authority referred charges of conspiracy and providing material support for terrorism against Hamdan, a non-capital case.

I have summarized the allegations detailed in the charge sheet below:

Conspiracy:

•  Hamdan knowing the unlawful purpose of al Qaeda willfully joined with the intent to further the unlawful purpose and in order to accomplish some objective or purpose of the agreement or enterprise knowingly committed the following acts:
  • served as a bodyguard for Osama Bin Laden
  • served as a personal driver for Osama Bin Laden
  • transported and delivered weapons, ammunition, or other supplies to al Qaeda
  • drove or accompanied Osama Bin Laden to various al Qaeda training camps, press conferences and lectures
  • received weapons training in Afghanistan
• Hamdan willfully entered into an agreement with members of al Qaeda to commit Murder in Violation of the Laws of war by transporting SA-7 surface to air missiles to be ultimately used to unlawfully and intentionally kill U.S. and Coalition service members.

Providing Material Support:

•  Hamdan provided material support, specifically himself as personnel to be used in preparation for or carrying out an act of terrorism.  Toward that end he committed the following acts:
  • received training in al Qaeda training camps
  • served as a driver for Osama Bin Laden
  • served as Osama Bin Laden’s bodyguard
  • transported weapons or weapons systems or other supplies to al Qaeda and the Taliban
  • provided weapons and weapons systems, to wit; one or more SA-7 surface to air missiles, to be used in preparation for or carrying out an act of terrorism
  • provided services and transportation that directly facilitated communication and planning for an act of terrorism
  • protected the leader of al Qaeda and facilitated communication and planning used for acts of terrorism

For those interested in reading a brief chronicle of the Anfal Trial for genocide against the Iraqi Kurds by Saddam Hussein as it was conducted before the Iraqi High Tribunal up to the point of Saddam’s execution, please access my article for volume 9 of the Journal of Genocide Research at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=982397

The reason my article ends at Saddam’s execution is a factor of publishing what was originally meant to be an update. Michael Scharf’s point in an earlier post on this blog that we should continue following the rest of the IHT trials assiduously is well taken and I also hope that the media steps up its coverage of those proceedings even though the main protagonist is in the grave at this point.

Wonkette has this to say about the Fort Dix terror plot arrests:

The FBI has successfully broken up yet another fiendish terrorist plot on American soil. These brave defenders of freedom have once again ensured that Americans can rest easy, safe from the threat of a couple guys buying some guns and trying to… take over an Army base???

* * * *

Ok. So, the plot was: six dudes from New Jersey buy some guns and storm Fort Dix. The Fort Dix that is full of lots and lots of Army reservists with way, way more guns. And, like, extensive military training and shit. Yes, thank god these terrorists have been caught and locked up before they could be killed within minutes of deciding to carry out the dumbest fucking terrorist plot we’ve ever heard of.

Ann Althouse makes a good point in response:

Now, I don’t blame bloggers for riffing impetuously on anything that sounds stupid, but of course, you must realize that the idea of hijacking four planes with boxcutters and knocking down buildings would seem like “the dumbest fucking terrorist plot” if it hadn’t happened.

I’d go further here and say that Wonkette’s post is one of the dumbest I’ve ever read.

First, if 6 guys made it through the gate with RPG’s and automatic weapons they would have done a significant amount of damage. I think I echo the experience of most servicemembers when I say that, day to day, unless I was headed to the range (which for most units at Fort Dix would be once every 6 months) my rifle was locked up in the arms room, and my ammunition was not accessible without a separate trip to the depot. The only armed people on base with live ammo were the MP’s at the gate and on patrol. That’s if Fort Dix has MP’s, it’s possible security is run by armed private security guards. Bottom line, if these 6 “dudes” made it through the gate they would have had a lot of chances to kill a lot of people.

Second, how hard would it be to get through Fort Dix security? Well apparently every pizza delivery car was allowed through with a paper pass issued to the pizzerias. No scrutiny beyond an easily duplicable piece of paper, unless a vehicle was selected for a random search. This plot could have happened had it not been broken up by authorities. Further, contrast Fort Dix security with the security procedures at Dover Air Force Base, according to the complaint (which no doubt Wonkette read in detail) Dover was avoided because it was too heavily guarded. This story details some of the different procedures:

Commercial delivery traffic was relocated to a southern gate. Congress approved money for a new, tougher command post. Pizza shop deliveries — used by terrorists, according to federal documents, to gain firsthand knowledge of Fort Dix — are banned entirely here. Troops have to trudge out to the main gate administration to fetch fast-food deliveries.

Third, Wonkette referring to the FBI says “These brave defenders of freedom have once again ensured that Americans can rest easy, safe from the threat of a couple guys buying some guns.” This sort of characterization leads me to believe that Wonkette really hasn’t read much into the story beyond a few paragraphs from the New York Times, that or she just chose to ignore all of the serious facts alleged in the complaint. Moreover, while it’s tough to infer tone from a blog post, my reading makes it clear that she does not believe the FBI agents and informants who infiltrated this group are “brave defenders of freedom.” I find this sideswipe to be pretty obnoxious. Reading the complaint, it becomes clear that these individuals were commited to their cause, willing to kill for it and willing to die for it.

Maybe in Wonkette’s circles it is common to watch jihadist training and recruitment videos, host viewings of videos depicting the targeting and killing of U.S. military personnel, conduct surveillaince on multiple U.S. military installations, plan an operation designed to kill the greatest number of people, conduct live fire training for that operation, and then seek out arms dealers to supply the operation with automatic weapons and RPG’s. That may not seem serious to her, I on the other hand think those acts alleged above are very serious, and am thankful that the people involved in the investigation were brave enough to infiltrate that group. Those “six dudes from New Jersey” were six dedicated terrorists, motivated by calls to jihad and willing to kill to achieve their goals. Good job to the FBI and related authorities for breaking it up, and shame on Wonkette for minimizing their efforts.

I have uploaded the criminal complaint and affidavits in support (Hat Tip to Bobby Chesney) regarding the criminal charges against Islamist militants seeking to attack personnel at Fort Dix New Jersey.  I grew up in New Jersey near Fort Monmouth (referenced in the complaint) and when I was in the Army trained at Fort Dix on occasion, so this story hits close to home (literally).

According to the Washington Post:

Federal authorities have arrested six New Jersey men for allegedly plotting an attack against the Fort Dix military base, federal officials said today.

The plan, reported this morning by New York’s WNBC television and confirmed to The Washington Post by officials from the FBI and the New Jersey U.S. Attorney’s Office, involved storming the base with automatic weapons and attempting to kill as many soldiers and other personnel as possible. The World War I-era base is approximately 17 miles from Trenton in central New Jersey and is used now as a training and mobilization site for U.S. Army reservists.

The complaint charges conspiracy to kill U.S. employees in violation of 18 USC 1114 and possession of firearms by an illegal alien in violation 18 USC 922(g)(5).

Four of the men are from Albania, one is from Turkey and one is from Jordan.  At least three are illegally residing in the United States.  The group has 10 men, only 6 of whom were arrested, so more arrests may be on the way.

Federal officials were tipped off to the group after members brought a DVD to a store for duplication.  On that video 10 young men were seen firing assault weapons at a range and while “calling for jihad and shouting in Arabic “Allah Akhbar”.  Using a paid informant, the FBI later infiltrated the group and consensually recorded conversations during meetings and telephone calls.

The complaint details how members of the group observed jihadist recruiting and training videos.  The videos viewed included recruitment messages from Osama Bin Laden and the martyrdom videos of two September 11th hijackers as well as videos of armed attacks on and the killing of U.S. military personnel.  One recording made by the informant included details of a planned attack against Ft. Dix and a nearby naval base (Lakehurst NAS).  The plan called for using six or seven jihadis armed with RPGs or other weapons to kill at least one hundred soldiers.

An excerpt from the recording is included in the complaint, the conversation is between Mohamad Shnewer and the informant :

“If you want to do anything here, there is Fort Dix and I don’t want to exaggerate, and I assure you that you can hit an American base very easily.” 

“You take a map and draw it and then you calculate that there are areas where 100-200 individuals and you should allocate 6-7 persons for this alone.”  

“When you go to a military base,  you need mortars and RPGs.”   

“…I am at your services as you have more experience than me in military matters and in life.”  

The informant also detailed how the group conducted surveillance of the bases:

When discussing the naval base Shnewer said: “Maybe it is easy to hit them, there are nights where the squad is out and doing exercises without weapons… the only problem is they may have protection and scouts watching.  You know what we can do is go one day to a nearby restaurant and observe the whole base.” 

When discussing how to conduct the surveillance the informant and Shnewer discussed using a cell phone camera:

“Same thing for Fort Dix, you cannot take pictures as it is very difficult to do so.  You know what, we can take pictures by using the phone and you make as if you are talking on the cell phone and you will take a video… In Fort Dix, yeah, while you are driving, we will drive slow and what is nice with the phone is that if you are stopped by police, you will delete it from memory.” 

In a later recorded conversation details of the plan emerged:

“My intent is to hit a heavy concentration of soldiers…” As Shnewer and the informant drove into a specific area at Fort Dix, Shnewer said “…this is exactly what we are looking for.  You hit 4,5, 0r 6 humvees and light the whole place [up] and retreat completely without any losses.”  

Later regarding Lakehurst:

“This is going to be easier to hit specially if you have 8 or 9 shooting with machine guns and they are good shooters.”  

The affidavit also includes discussions about skipping the Fort Dix plot in favor of an attack on the Army-Navy game in Philadelphia:

“Quite honestly there is the Navy base… You know where the stadiums are in Philadelphia?  There is the Navy base and every year they have the Army-Navy ball game and they come and stay one or two weeks… the Navy base will then be full of people… You see this is an opportunity and the beauty of this location specially if you have the proper weaponry, is that you can hit it from where, do you know?  From New Jersey.” 

I have uploaded the complaint in full here.