Farewell to a friend and Chomsky is an idiot

Farewell to Ben



First, a farewell to a friend, Robert "Ben" Fleming. Ben just left the tribunal last week after working at the ECCC for 2 1/2 years. For all tense and purposes, Ben and I were predisposed not to like each other, let alone converse at any level. He worked in a different office (the Office of Co-Investigative Judges) that sometimes is at odds with my office. Not only is he a Texan (a huge flaw in any true Coloradoans' mind), but a proud Texan (kind of like having egg on your face and bragging about it). He and I did not see eye to eye on most everything, from international criminal issues to the best NFL franchise (guess which one I defended?). Yet, Ben and I typically had a good time together, laughed about all sorts of things, had a respect for each other (albeit, he would say his respect for me was just a facade) and enjoyed making fun of each other (it was pretty easy for me, given his background at all). I don't profess to be one of Ben's best friends or even one of his good friends here in Cambodia, for we did not hang out religiously or anything. Yet, I respect what he did for this tribunal. He was at the ECCC from the very beginning, and played a considerable role in forming it, legally speaking. Ben's work products have and will continue to shape this tribunal's legacy. He was a smart guy with an obvious intellect. He was nice to just about everyone, and spoke honestly and direct. Ben took an interest in helping me out in my career even when he had no reason or obligation to. He also started work here out of a sincere interest to help Cambodians. His family back home took in some Cambodian refugees around the time of the Khmer Rouge, and they created a bond with this family. Ben keeps in touch with them, in the US and abroad, and he always wanted to do something for the Cambodian people. This tribunal was one of the ways he did that. Ben told me a crazy story before he left. When he first came to Cambodia to work at the ECCC, he hung out at this random bar and met this guy. They struck up a relationship. Some considerable time later, the two found out that the Cambodian guy was directly related to the Cambodian refugee family that Ben's family took in in Houston! Small world huh? Anyway, thanks Ben for your contribution to the ECCC. Stay in touch, and best of luck on your next adventure.



Chomsky is an idiot.



Ok, while I hope all readers read this next section, I warn you, it is about international politics, international criminal law, and Norm Chomsky! Some may consider this a bit dry (sarcasm laid on thick right....here). Anywho, Chomsky was interviewed by the Phnom Penh Post, and before reading the rest of this paragraph, take a gander at this article. http://www.phnompenhpost.com/index.php/National-news/Tribunal-ignoring-US-role-says-Chomsky.html
Now, political philosophers and academics have a right to speak their mind, a right to stir the proverbial pot, and a right to push the limits, even on some facts. Yet, there is also an obligation to be generally accurate and be true to the overall topic you are discussing. However, Norm Chomsky has apparently forgotten that last part. While Chomsky and I may share similar political leanings and view of the world order, this interview that the Phnom Penh Post published is so factually inaccurate and legally fanciful that it was hard not to scream out in shear anger or laugh uncontrollably while reading this. Maybe this explains why it was published in the Phnom Penh Post of all papers.



In his assessment of the ECCC, his basic argument is that this tribunal, like all others in history, are all about one or more powerful countries (often the case with Chomsky, the US is the powerful country) leveraging its power to prosecute selectively...meaning only former enemies, citizens of weaker nations, and politically beneficial targets. Continuing, Chomsky sees that the US and its leaders are either equally or more criminally responsible than those that these tribunals prosecute. Or the US is partly to blame for whatever criminal acts others committed and are now being tried for. To be fair, Chomsky is right to assert that the US, through its leaders and officials, is not blame free. Plenty of legitimate arguments exists that US officials should have been prosecuted for acts committed in the many wars and engagements that my beloved country has participated in, starting with events in World War II.

Despite this, Chomsky is still a freaking idiot. First, in trying to make his argument, he commits a "farce" of trying to state accurately what international criminal law is. First, bombs cannot have genocidal intent Norm. Only people can. Bombs do not discriminate, especially carpet bombing. Sure, if you drop a bomb on a town because it is a town that has a certain protected group (e.g. Muslims, Vietnamese, or Hutus), that could be genocide. But he is talking about random, blanket bombing. His example of stated US policy in bombing Cambodia to prove the genocidal intent of the US ("use anything that flies against anything that moves") actually proves that the US did not act with genocidal intent! The US would have to bomb to kill a certain group, not just "anything that moves"! He also says the Nuremberg tribunal was all ex post facto law or law created after the commission of the act (making the act criminal after the fact) that was unjustly applied against the Nazis. So Norm, have you seen the international legislature lately? Oh yea, there isn't one. Therefore, international criminal laws are created through unanimously created and not obligatory treaties, but also (and primarily I might add) through custom (i.e. customary international law that are binding on nations regardless of consent). The laws that the Nazis violated were either laws in treaties they signed and ratified, or international customs that they violated (i.e. crimes against humanity). Sure, prior to Nuremberg, no entity announced these laws publicly, but they still existed among the customs of nations, the rules of war, and the rights of humans. These is just a taste of the legally inaccuracies that litter this interview, and Norm should be ashamed that he passed this along as fact.

Yet, what is the most frustrating is his unrealistic political view of the field of international justice. Chomsky believes that international justice (i.e. international tribunals and international criminal law) should only occur if it is perfect, in that the world is politically able to prosecute anybody, anywhere, from any country. Plus, he argues that international criminal law can only be if it is flawless and indisputable. How is this view not only not realistic, but achievable, Norm? Of first importance, don't victims of these conflicts deserve some measure of justice? It is all or nothing Norm? Well, I believe some level of justice, imperfections and all, is better than no justice (but I don't even accept his proposition that these tribunals are unjust when in fact they are far more just than not). Just because we cannot prosecute all those that might be culpable than we cannot prosecute anyone. Let impunity live? The bigger point, however, is that a perfectly acceptable international criminal enforcement mechanism cannot spawn overnight. Heck, a functional, fair, and just DOMESTIC criminal system cannot spawn overnight either, which is, unfortunately, very evident the world over. It takes time, experience, and trial and error to get it right. For example, the US criminal justice system is one of the most respected in the world, but it took hundreds of years to get to where it is. In the very beginning, it was flawed, unjust, and a shadow of its present self. And still, it too is problematic and far from perfect. With that being said, how can you ridicule international tribunals and the field of international criminal law, Norm, when the field has only be around, in earnest, since 1992 (the formation of the Yugoslav tribunal)? In this context, not only has this field of law advanced quickly, effectively, and admirably, but it should also be noted that this field has been created and manned by individuals from very different legal cultures, legal customs, legal traditions, and legal beliefs. Mixing and matching these differences into a patchwork that all nations can agree to, and more importantly, can justly try those accused on committing international crimes is a very difficult feat, yet this is exactly (more or less) where the field of international justice is. Of course, the field is far far far from perfect, and it has many decades of development ahead of it. However, this field has done some remarkable stuff when put in context. Arguing that the field can only exist if it drags US presidents into a courtroom in The Hague is (albeit legally desirable when applicable) politically absurd and counterproductive in numerous ways. This field cannot get to a place of advanced, blind justice at the snap of a finger, Norm, or without decades of development.