For war-crimes tribunals, 'justice' is a relative term

Each member of the Salwari family has a slightly different way of recalling the day they took Said Talib Shah away. With varied vantage points like characters in the Japanese film "Rashamon," three men retell the dread of watching the Taliban stop their younger brother on the street and force him into the back of a pick-up truck along with hundreds of other young men.

A fourth, their father, remembers pleading for his son's release, telling the Taliban soldiers that he was just an engineering student at Kabul University, not a soldier. "I ran out to catch him, but the Taliban said, 'It's not important whether he's studying or not.' It was just like a vulture that snatches the smaller birds," says Said Gauhershah Salwari, a man with finely etched eyes.

Memory is in the mind of the beholder - a characteristic that is evident this week as the eyes of the world focus on the trial of former Yugoslav President Slobodan Milosevic. The man who is accused of ordering the slaying, starvation, and expulsion of thousands in Bosnia, Croatia, and Kosovo throughout the 1990s, but insists he was only trying to preserve his country's unity and defend it from terrorism.

Justice, however, is supposed to be far less subjective. But in an era in which nations emerging from the horrors of war are increasingly turning to tribunals - whether in search of public catharsis or international legitimacy - the terms of justice are becoming as difficult to weed through as the scene of a crime in the eyes of four loved ones.

Virtually on the eve of the Milosevic trial in The Hague, the United Nations announced it could no longer be a party to the creation of a war crimes tribunal in Cambodia. After spending nearly five years in negotiation with Cambodian officials over a court that would try the surviving senior leaders of the Khmer Rouge, a genocidal communist regime responsible for the death of more than 1.5 million of its own people between 1975 and 1979, the UN concluded that officials in Phnom Penh did not and would not meet the basic standards for a fair trial.

One key matter of dispute involved the Cambodian government's attempts to preserve amnesty deals it worked out for key Khmer Rouge leaders.

"It's disheartening, because this is the last chance to bring some accounting for what happened in Cambodia, and this doesn't bode well for that," says Brian Tittemore, one of the authors of a study on the process. But Mr. Tittemore, a lawyer with the Organization of American States' Inter-American Commission on Human Rights, says that the UN negotiators could not conscience being party to a trial that put political convenience before jurisprudence.

"Particularly when you're talking about crimes against humanity, such as genocide, there's a doctrine that these sorts of crimes are so serious ... that you can't submit them to amnesty," says Tittemore.

Who shall be pardoned, and who shall be prosecuted? These are some of the most difficult questions Afghanistan will face if it, as its new leadership promises, also pursues a war crimes tribunal. Afghanistan's interim foreign minister says that such a tribunal will only pursue the perpetrators of crimes committed under the Taliban's five-year rule.

The Taliban, however, was far from the only author of mass killing and ethnic cleansing over some 22 years of war in Afghanistan. Warlords and militias only loosely tied to the Northern Alliance - whose political leaders now comprise a weak central government in Kabul - are widely reported to have committed crimes equally as chilling as the Taliban's. Indeed, its ethnic Pashtun base also has been the target of bloodletting, and the Hazara minority to which the Salwaris belong have been brutal as often as brutalized.

To the Salwaris, however, a family of mild-mannered pharmacists, the Taliban years were a time of great persecution. The Hazaras are Shiites - unlike the austerely Sunni Taliban - and many have Asian features that set them apart from other Afghans. Several family members have been carted off to jail and beaten, and several of the sons hid in Iran for part of the Taliban's rule.

But Taleb Shah wanted to complete his studies, so he stayed. In town and at school, his face could pass for Tajik. But in the western suburbs of Kabul, everyone is Hazara, and the ruling Taliban came for them on several occasions.

Sometimes they would arrest people and then demand money from relatives for their release. Another son found himself in that predicament twice.

"They decided to swoop in and catch as many young people as possible. But when I saw they had gathered 300 boys, I calmed down and said, 'surely they will be released soon,' " the elder Salwari says.

But two weeks later, Talib Shah's body was returned to them. He had been packed into an airless storage container, along with several hundreds of others, where he died of suffocation.

Author Ahmed Rashid, in his book "Taliban," documents hundreds of deaths that took place in this manner. Like the Khmer Rouge, whose files show orders to club victims to death rather than waste bullets on them, the policy appears to be deliberate - a sort of low-tech gas chamber. "The use of containers was particularly horrific, and they were to be used increasingly as a method of killing by both sides," Mr. Rashid writes.

Some 700 Hazara from this area died this way, the Salwaris say, about 300 of them on the day their son was arrested. Today, the idea of justice seems remote.

But "when the court is established to try those people, I know that I will have some evidence to give them, because I can point them to the people who had a hand in killing my brother," says Said Arabshah Salwari.

The Khmer Rouge trial was to be a hybrid tribunal, one that would include international as well as Cambodian judges, and it would be held in Cambodia. At Cambodia's insistence, there would be one more local judge, giving it, not the UN, ultimate control over the outcome.

Moreover, the hybrid trial was to be held in Cambodia, to help people see and feel the process of justice - and help instill still-absent respect for law. "This case belongs to the public, not the Cambodian and UN officials," says an exasperated Youk Chhang, the director of the Documentation Center of Cambodia, which is beseeching the UN to come back to the negotiating table.

War crimes experts say that does not bode well for countries that need to bring accountability after atrocities - but which haven't got nearly as much attention as the Balkans, in part because the concept of genocide in Europe haunted the West more than it did in, say, Rwanda. There, the trial process has been so slow - and the number of cases so overwhelming - that they are now being referred topre-colonial tribal courts. In Sierra Leone, the government has been able to come to an agreement with the UN - largely based on the formula worked out for Cambodia - but funding for the tribunal has been difficult to secure.

An important possibility for future trials is the creation of an International Criminal Court, which only needs eight more signatories to go into effect. For member states, this would eliminate the need to secure funding and negotiate agreements for each ad hoc tribunal, streamlining the process. But this only applies to crimes committed after the creation of the court, unless decided otherwise by the UN Security Council.

"Its jurisdiction is fairly limited," says Diane Orentlicher, professor of law at American University. "After a period of atrocity there has to be some form of justice to regain entry to the international community, but also for a country to get itself on a solid foundation," she says. "The notion of an international tribunal is a symbol of that, but I don't think it makes sense to assume that it's the best approach for all countries," she adds, pointing to the alternative such as South Africa's Truth and Reconciliation Commission. "An international tribunal is never the right approach when a local government can do it."

But in Afghanistan, where provincial governors have already made amnesty deals, there is skepticism that a fair tribunal could work without foreign help.

"After my son's death, my heart is broken, and I don't go anywhere," says Salwari. "If all the trees of Afghanistan were pens and all the water of the rivers were ink and all the plains were sheets of paper, it still wouldn't be enough to explain what the Taliban did to this country."