Does the World Care About Crimes Against Humanity in Asia?

 

The ICC’s decision to take action against Russia’s Putin is in glaring contrast to its slow or non-existent response to myriad war crimes in Asia, from the wars in Vietnam to Afghanistan to Myanmar today.

By Philip Smucker

March 31, 2023

Credit: Depositphotos

The world, and Asia in particular, is trying to understand the implications of the International Criminal Court’s arrest warrant for Russian President Vladimir Putin issued on March 17, related to Russian efforts to forcibly deport thousands of Ukrainian children to Russia.

 

The Russian president’s alleged crimes against humanity are unique, but they are also comparable to ongoing and past war crimes committed in Myanmar, Cambodia, Afghanistan, the Balkans, and even in Vietnam over 50 years ago by U.S. forces serving there.

The indictment of Putin recalls for me an era when journalists, myself included, pursued reporting on war crimes in Cambodia, Afghanistan, and the former Yugoslavia with genuine hopes that justice would and could be done, albeit belatedly. In that bygone era, issues of “command and control,” as they had gained prominence in the Nuremberg Trials, rose to the forefront of journalistic and judicial efforts to tie leaders to crimes against humanity that sprung from governmental orders and national strategies. War crimes courts for the former Yugoslavia and Cambodia, established in 1993 and 2001 respectively with the assistance of the United Nations, were often driven by news reporting, including testimony from reporters. The courts became models of how to prosecute war crimes, providing victims with some relative justice and a chance to be heard on national and international stages.

In the Balkans, President Milosevic, General Mladic, and Dr. Radovan Karadzic were all eventually hauled into court along with a few dozen others. Efforts in Cambodia, which ended in 2022, were far less successful than those for the former Yugoslavia, as $337 million was spent to convict just three men, including Khmer Rouge leader Khieu Sampan, a close associate of deceased Khmer Rouge leader, Pol Pot.

Today, it is fair to ask if the indictment of Putin will alter a haphazard international effort to prosecute war crimes, particularly since the United States, China, and Russia all refuse to acknowledge the jurisdiction of the International Criminal Court (ICC), which, while independent, was established with the assistance of the United Nations in Rome, Italy in 1998. The chief reason to doubt that the ICC – which has flexed its investigative powers in Asia – will gather a new consensus for international action is that the big powers, while paying lip service to the efforts of the ICC, are adamant that they will not recognize a body that could put on trial their own soldiers or leaders. This sends a strong message to all other nations.

Establishing an international body capable of remaining above the fray of international politics, and gaining the support of the entire world, was never going to be easy. Yet most nations (with some obvious exceptions) remain in agreement, in principle, that violations of the Geneva Conventions (for warfare) and genocide, the elimination of entire ethnic and religious groups of people, are egregious crimes against humanity and should be prosecuted.

Crimes Against Humanity in Asia: A Long and Horrifying List

While the press has often cast a discerning eye on alleged war crimes in Asia, prosecutions or consequences of any kind have been far and few between. The U.S. Army’s own war crimes in Vietnam, while well-documented in the press, including by U.S. reporters, were investigated but not prosecuted beyond some notable house arrests. On March 16, 1968, 55 years ago, First Lt. William “Rusty” Calley and his platoon murdered at least 300 Vietnamese civilians in the South Vietnamese hamlet of My Lai. After corralling villagers, Calley asked his own soldiers to “take care” of the civilians. Asked what he meant by the order, Calley told one inquisitive private, according to a subsequent U.S. Army investigation, “No, I mean kill them.” Calley and his men in “Charlie Company” committed murders, as civilians described them, that resulted in “huge holes being blown into bodies, limbs being shot off, and heads” decapitated.

 

Donald Kirk, a prominent Asia correspondent and author of the book on Vietnam, “Tell it to the Dead,” investigated the My Lai massacre in its aftermath. He told The Diplomat: “The case of My Lai (and other villages and hamlets) had to be investigated. Calley got a dishonorable discharge but was sentenced only to house arrest, not prison. The investigation should have gone much further than it did into what happened at My Lai and elsewhere, up the chain of command to the higher-ups who distanced themselves, contributing to the cover-up.”

Kirk, who also covered events in Cambodia before and after the Khmer Rouge takeover, said that it was a failure that the United States refused to take investigations in Vietnam to the level of command responsibility. “In war, each side accuses the other while overlooking or glossing over its own misdeeds,” he added. “We should not let policymakers off the hook since they are responsible for the crimes committed [by soldiers] as a result of their policies and orders.”

If the Vietnam War displayed U.S. hubris and a reluctance to investigate and prosecute war crimes, the so-called “War on Terror” of the 21st century proved that the U.S. government would continue to pay only selective attention to war crimes. After 9/11, when the threat of terror instigated by Islamic groups and aimed at Western interests rose to the fore, war crimes, as they were featured in the Balkan era, were simply ignored or even tolerated, particularly under the administration of George W. Bush, whose policies advocating various forms of recognizable torture were advocated by then-Vice President Dick Cheney and a coterie of White House legal eagles.

When I arrived in Afghanistan in 2001, the coverup of U.S. war crimes, unbeknownst to me, had already begun. When I interviewed U.S. General Dan McNeill about his efforts to hunt down al-Qaida members, growing tensions between the U.S. Army and the International Committee for the Red Cross (ICRC) was not apparent. ICRC officials had been refused access, except on rare and controlled visits, to the U.S. Bagram airfield prison facility where Afghans were being systematically beaten while chained to the ceiling, according to later testimony from U.S. soldiers.

Strong investigative reporting by the New York Times’ Carlotta Gall, among others, would reveal deaths in custody of at least two Afghans in Bagram while McNeill maintained oversight of the facility. As former Time reporter Margaret Carlson would write years later about McNeill’s subsequent military promotion, “[I]f anyone should be court-martialed, it should be Gen. McNeill,” who claimed with a straight face at the time that two Afghan beating victims had died of “natural causes.” As Carlson noted in a piece in the Huffington Post, “After natural causes became suspect, McNeill claimed Dilawar (one of the two dead) had died of coronary disease,” when, in truth, one of his legs had been “beaten to a pulp.” However, such severe torture was part and parcel of US policy early on in the “War on Terror.”

Like so many hundreds of Afghans taken in sweeping roundups, the two Afghan civilians had been subjected to harsh interrogation with constant questions about where bin Laden was hiding. Indeed, the U.S. military had already missed him at the battle for Tora Bora in the Spin Ghar mountains and he was well ensconced in Pakistan by the time of the Bagram murders.

Today, Afghanistan’s five decades of recent conflict present an immense conundrum to anyone trying to look into or prosecute war crimes by the deposed Afghan government, the current Taliban regime, or the now-departed U.S.-led coalition military forces. In recent years the ICC launched a widespread probe of war crimes committed in Afghanistan, including torture. As The Diplomat reported at the time, the Trump administration, playing to a conservative U.S. following, denounced the ICC and its chief prosecutor Fatou Bensouda. But then, the ICC did its own reputation for even-handedness no favors by announcing that it would prioritize only investigations into the activities of the Taliban and the Islamic State, leaving aside the U.S. government and its military.

Even that, however, has become a Sisyphean task as the Taliban now run the government but remain officially unrecognized by any other nation. (China, Russia, and Pakistan, meanwhile, have accredited Taliban diplomats.) With no means to travel to investigations in Afghanistan, the ICC has not begun serious investigations into anyone’s crimes against humanity there. The United Nations, apparently obsessed with its own humanitarian engagement with the regime, does not appear to be leading a new charge to hold the Taliban or anyone else accountable for war crimes.

Meanwhile, despite numerous and widespread reports of abuses by foreign coalition forces in Afghanistan between 2001 and 2021, only after a decade did U.S.-led coalition forces and NATO members bring charges against soldiers. The most prominent of trials examined the actions of a dozen U.S. soldiers in the murder of three Afghan civilians in Kandahar, a crime that involved the collection (and filming) of body parts as trophies in what came to be called the “Maywand Murders.” Staff Sgt. Calvin Gibbs was found guilty in a military court in 2011 of being the leader of a U.S. Army “thrill kill team” that murdered three Afghan civilians for sport.

Australia and the United Kingdom have conducted their investigations into alleged war crimes with fewer convictions. While a 2020 report by the Inspector-General of the Australian Defense Force found “credible information of war crimes committed by the ADF in Afghanistan between 2005 and 2016,” to date, no individuals have been referred for prosecution. Just last week, the United Kingdom launched a probe into whether U.K. special forces stormed the houses of two Afghan families and executed their relatives.

Do War Crimes and Investigations Matter?

The benefits of proper trials, testimony, and prosecution of war crimes go well beyond courtroom arguments and even convictions. For example, in 2021 and 2022, the U.N.-backed tribunal for Cambodia heard from dozens of Cambodians, who had the chance to testify as to the humiliations and brutal crimes ordered by Khieu Sampan. As with the victims of genocide in Bosnia, Cambodians who were victims of crimes against humanity were given a chance to see justice, accountability, explanations, and finally some closure to an era that left nearly 2 million Cambodians dead of execution, imprisonment, forced labor, torture and starvation.

Other Asian countries, including Myanmar, and regions (Tibet, Xinjiang, and West Papua, for example) brutalized by policies overseen and perpetrated by their own governments have never had a chance to witness the prosecution of crimes against humanity or war crimes.

In Myanmar, following the Tatmadaw’s expulsion of hundreds of thousands of Rohingya refugees, and a new military take-over of that country two years back, an estimated 20,000 civilians have been detained while thousands have been killed, often in custody of the Myanmar military.  Even as a civil war has intensified inside of Myanmar, with National League for Democracy (NLD) leader Aung San Suu Kyi languishing in prison on trumped-up charges, the ICC has failed – along with most foreign governments thus far – to accept the NLD’s National Unity Government as a viable governing body capable of providing the ICC with proper jurisdiction to investigate war crimes.

Likewise, the U.N. Security Council, which remains under the sway of superpowers reluctant to help, has not referred the myriad crimes in Myanmar to the ICC.  While judges at the ICC are engaged in investigations of the mass persecution of Rohingya Muslims, the disconnect between those efforts and demands for broader justice in Myanmar is clear. ICC officials, arguably lacking in resources and broader international backing, appear bogged down with the Rohingya issue even as Myanmar is plunged deeper into civil war and ever-expanding allegations against the Tatmadaw. (Myanmar, like so many superpowers, is not a party to the Rome Statute that founded the ICC.)

Meanwhile, well-documented abuses against ethnic groups in their ancestral homelands in China (Tibet, Xinjiang) and Indonesia (West Papua) have seen virtually no move toward justice at the international level.

Cause for Some Optimism?

The ICC, not unlike other institutions weakened by a lack of international willpower, embodies the failures of the world to embrace the need to tackle war crimes, including mass deportations of children, violations of the Geneva Conventions, and genocide. Big powers and the media all play – in their own way – key roles in selectively emphasizing the value of prosecuting war crimes in one country over the value of doing the same in another. Indeed, news coverage of war crimes, if it is not independent and dogged in its pursuit of justice, risks becoming just a mirror of the national and political interests that have resulted in the failures of the ICC and other U.N.-backed tribunals.

Though recent coverage, apart from some selected reporting and opinion pieces, has stressed the importance of the ICC and the prosecution of war crimes committed by Russian forces in the Ukraine, major media outlets have made only limited comparisons to outstanding crimes against humanity outside of the Ukraine theater. Broader issues of international impunity are rarely addressed and no coordinated international approach to war crimes has even been well articulated.

The overt hypocrisy of big powers like the United States, Russia, and China is rarely at the forefront of the debate – though their reluctance to support prosecutions is the main impediment to institutional means of tackling crimes against humanity in Asia and around the world. In the U.N. Security Council, these same world powers are willing to discuss justice – mainly other people’s justice – though they remain unwilling to submit to the jurisdiction of an independent body devoid of their own national interests. Seasoned war correspondents like Donald Kirk, see clearly why the U.S. government is showing selective interest in Ukraine and Russian crimes. “As far as we’re concerned, [Putin] is the leader of the enemy and should be tried for his crimes, which are very much against what we perceive as our own ‘national Interest,’” he said.

“We need to know, of course, that Putin will never go on trial as the war sizzles on for years.”

All told, it is not possible to read tea leaves of what lies ahead for prosecuting crimes against humanity in Russia, Afghanistan, or even in Myanmar. I can recall a time when jaded news reporters chuckled at the notion that Milosevic would ever end up in a jail cell in The Hague, Netherlands, but, in the end, it happened. If there is a will, there can be a way, and so surely time will provide insight into the truth of Martin Luther King’s words that “the arc of the moral universe, though long, bends towards justice.”

AUTHORS

GUEST AUTHOR

Philip Smucker

Philip Smucker is a news reporter and author of “My Brother, My Enemy: America and the Battle of Ideas across the Islamic World” and “Al Qaeda’s Great Escape: Military and Media on Terror’s Trail.”