March, 2010
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This piece was written while the author was completing a Master of Arts degree in Peace Studies at the Joan B. Kroc Institute for International Peace Studies at the University of Notre Dame.
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Introduction
In the summer of 2008, an observer in the Cambodian capital could see an "I support the KR trials" bumper sticker appear occasionally on the back of rickshaw or motorcycle winding through the dusty streets of Phnom Penh. There was little other indication in the city center of the origin of this tacit reference, but in an adjacent suburb, the Extraordinary Chambers of the Court of Cambodia (ECCC), the tribunal tasked with trying crimes committed during the Khmer Rouge's 1975-1979 reign of terror, was continuing its pre-trial investigations. The bumper stickers were part of an education and outreach campaign that deployed materials to each province with slogans such as, "Everyone can be involved in the process," "It's time to set the record straight," and, perhaps to quell fear about the nature of the trials, "Only the senior Khmer Rouge leaders and those most responsible for committing serious crimes will be tried."[1]
What factors will ultimately determine the significance of the Khmer Rouge tribunals? Certainly, there is a potential disconnect between international justice as a current area of academic and political fascination and international justice as an abstraction that may occupy very little space in the consciousness of a struggling post-conflict society. The efforts by the ECCC outreach department, however, represent an attempt to make the trials visually present in peoples' everyday lives, an indication that the space between the global and local relevance of the tribunals is not absolute. As of writing in 2010, the significance of the trials to Cambodian society is still very much being negotiated. A number of groups seek to increase access to and participation in the proceedings and to attach practical meanings to the "justice" that the ECCC seeks to provide, even if it is coming a quarter-century after the crimes were committed.
The meaning of war crimes tribunals anywhere, of course, is a contested matter. Debates are ongoing as to whether tribunals contribute to deterrence, either in settings of ongoing conflict or in international society more generally.[2] Also disputed is whether the uneven application of international justice renders it ineffective or even illegitimate,[3] and whether war crimes tribunals and punitive justice more generally are capable of meting out justice that is acceptable and meaningful to victims.
In the case of Cambodia, many of these issues are brought into sharper relief because of the extremely belated time frame of the trials and their location within the country where the crimes took place. This proximity is one of the ostensible benefits of "hybrid," or nationally-run but internationally-supported, tribunals. These tribunals are also referred to as the "third generation" of international justice, following the first generation of the Nuremberg and Tokyo trials and the second of the ad hoc international tribunals for crimes committed in the former Yugoslavia and Rwanda.[4] Regardless of the achievements of the ECCC, the potential relationship between these tribunals and the International Criminal Court, created by the Rome Statute in 2002, is yet uncertain. Some have pointed to the ICC's potential to make hybrid courts like the ECCC obsolete,[5] while others have emphasized the fundamental differences in their jurisdiction.[6] As the ICC continues to be developed in an effort to standardize norms and procedures of international justice, it is worth reflecting more deeply on the experience of Cambodia. What does the ECCC reveal about the politics of international criminal justice? What can be learned about the unresolved tensions that arise in the pursuit of criminal accountability and the political consequences those tensions may engender?[7] Lastly, what can be learned about the potential of criminal justice proceedings to contribute to ongoing local reconciliation and restoration efforts?
The Politics of International Criminal Justice in the Creation of the ECCC
That an internationally-supported tribunal for the crimes of the Khmer Rouge was not established until now, nearly thirty years after these crimes were committed, was largely the result of Cold War geo-politics. The Vietnamese-backed Peoples' Republic of Kampuchea (PRK) government that ousted the Khmer Rouge in 1979 was viewed with hostility by western powers. With support from member states which were approaching policy towards Cambodia from an anti-Vietnamese standpoint, the Khmer Rouge was able to retain Cambodia's seat in the United Nations until 1990.[8] Between 1979 and 1989, only one formal UN investigation into the human rights situation under Pol Pot was undertaken. It was not until 1997 that the UN provided Cambodia with a mechanism for trying the crimes of the Khmer Rouge during their reign over the country they re-named Democratic Kampuchea.[9]
Given that Cambodia is now widely considered a paradigmatic case of genocide,[10] many have interpreted the establishment of the ECCC as a face-saving effort on the part of powers who for years supported the Khmer Rouge politically and militarily.[11] The radical reversal of the position of the United Nations with regard to Khmer Rouge crimes is also sometimes explained by what Christopher Rudolph labels a "dramatic turn in the 1990s towards legalization."[12] This term refers to the proliferation of recent efforts to prosecute internal crimes in international or internationally-supported forums, creating what Luftglass has called an "institutional momentum of the atrocities regime."[13] With high-profile efforts to prosecute some of the other widely-known atrocities of the latter half of the 20th century underway (primarily Bosnia and Rwanda),[14] Cambodia in many ways represented a glaring example of atrocities that had been ignored by the international community.
The timing and format of the Khmer Rouge trials also have very much to do with national politics, both within Cambodia and within the United States. The United States, hoping for a defeat of the Vietnamese-backed PRK government, gave an estimated $85 million in aid to the Khmer Rouge between 1979 and 1986.[15] In addition to a strategy conceived of from more general geo-political considerations, US hesitancy to discuss Khmer Rouge crimes in the 1980s and early 1990s has also been interpreted as an attempt to prevent information about its secret bombings in Cambodia, which were part of its strategy during the Vietnam war, from becoming part of public record.[16] The 1994 signing of the Cambodian Genocide Justice Act, however, began a period in which the United States took the lead in pushing for a Khmer Rouge tribunal.
The actual format and mandate of the tribunal has resulted from a long series of negotiations between the Cambodian government and the UN, with the occasional intervention of the US. George Chigas has interpreted the Khmer Rouge tribunals as a mechanism pursued to restore international legitimacy and donor funding to Cambodian Prime Minister Hun Sen's government, which took power through a heavily criticized coup in 1997.[17] Sen's government made the initial request for international assistance in creating a tribunal, but negotiations stalled for many years over Sen's insistence on measures that were interpreted as allowing his government too much influence over who would be indicted and convicted.[18]
In response to two subsequent Cambodian rejections of UN proposals for a tribunal, United States Senator John Kerry suggested a trial format in which there would be a majority of Cambodian judges, but the agreement of at least one international judge would be needed to proceed. The prosecution and defense teams would each be comprised of an international and a Cambodian lawyer working together as counterparts. After a visit to Cambodia by Senator Kerry, this proposal was accepted and integrated into the structure of the ECCC.[19]
What this history reveals is that the timing of the Khmer Rouge tribunals does not merely represent a "delay in providing accountability."[20] The political factors that prevented serious confrontation of Khmer Rouge crimes have been reconstituted so that it is now politically possible and appropriate to do so. While this may not render the tribunals less meaningful either nationally or internationally, it is important to recognize the influence of these political factors in the timing and format of the ECCC and in international criminal justice more generally. In the case of the ECCC, the influence of political interests is particularly evident in the conflicts that have emerged between international and Cambodian personnel.
Hybrid Tribunals — Learning from the Limitations
Negotiations between the UN and Cambodian government finally resulted in a structure in which the Khmer Rouge tribunal would be situated within the Cambodian judiciary as an "extraordinary chamber," with support from the UN to ensure that international standards of law are upheld. Internationalized, or "hybrid" tribunals had already been in established in East Timor, Sierra Leone, and Kosovo and have been advanced as more accessible, cost-effective, and locally-owned alternatives to the ad hoc international tribunals that had been set up to try crimes in the former Yugoslavia and Rwanda.[21]
Hybrid tribunals have several acknowledged drawbacks, however, including the potential limitations of smaller budgets and lower legal standards.[22] There have also been serious concerns about the independence of the Cambodian judiciary and, therefore, the legitimacy of the ECCC.[23] The close of the ECCC's first trial in December 2009 has been cited as an example of the compromised nature of the tribunal.[24] On the final day of the trial of Kaing Guek Eav, director of the infamous Tuol Sleng prison, the defendant and his Cambodian defense lawyer changed strategies, questioning whether the ECCC had jurisdiction to try him and calling for the defendant's release. This strategy was pursued without the approval of the international defense lawyer, who stipulated that his Cambodian counterpart's position was consistent with and potentially the result of pressure from the Cambodian government, which has to the date of writing opposed the indictment of any individuals beyond the four high-level Khmer Rouge leaders to be tried in the ECCC's second case.[25]
This conflict over the jurisdiction of the ECCC has also occurred in other organs of the courts, leading in another instance to a situation which has never occurred elsewhere in a war crimes tribunal: the inability of the co-Prosecutors to agree over whether to continue investigations of additional individuals.[26] After the indictments of the five initial Khmer Rouge members, the international co-Prosecutor prepared to submit evidence containing new facts and crimes to the co-Investigating Judges, thus opening the possibility for further indictments. The Cambodian co-Prosecutor objected on the grounds that a wider investigation could jeopardize national reconciliation, which is listed as among the ECCC's objectives in the Preamble of the Agreement signed between the Cambodian Government and the United Nations.[27] Prime Minister Hun Sen also announced his opposition to the potential investigation of additional individuals almost immediately, and this opposition continued to be emphasized by members of the Cambodian Peoples' Party.[28]
Such disputes have led some commentators to dismiss the ECCC as inherently flawed. "No one in the UN or elsewhere will ever copy the Cambodian model," Brad Adams of Human Rights Watch told The LA Times. "It's the lowest standard the United Nations has been willing to go."[29]
While by many accounts the legal standards in the proceedings have been lacking, a broader problem of the ECCC is the often divergent priorities of international and national actors. The dispute between the Cambodian and the international co-Prosecutor may represent an instance of political interference, but it also points to the unresolved question of how to prioritize legal accountability and political concerns, particularly claims supposedly made in the interest of "national reconciliation."[30] While this is implicitly an issue in many war crimes tribunals, the ECCC has been required to grapple with this question in legal terms. The Pre-Trial chamber of the ECCC ruled in favor of allowing the international co-Prosecutor's submission of new evidence to the co-Investigating Judges. However, as noted by Neha Jain, this decision may only have "postponed the inevitable" of determining whether the alleged interest of national reconciliation represents a sufficient rationale to refrain from prosecution of individuals beyond those originally indicted.[31]
Civil Society Engagement with the ECCC-Evaluating the Benefits
Despite the potential logistic and procedural drawbacks of hybrid tribunals, two of their ostensible benefits are that their proximity to the locale in which the crimes were committed may make them more accessible to victims and the broader society, and may make them more capable of building legal capacity in the host country. These benefits largely failed to accrue in East Timor, where, due to under-funding and lack of coordination between the UN and Timorese government, a sufficient outreach function was never established.[32] The tribunals in Sierra Leone, by contrast, were able to obtain outside funding for this task and to establish an Outreach Office that has produced radio and television programs, developed educational materials, and held town hall meetings across the country to increase awareness and discussion of the Court's proceedings.[33]
It is clear, therefore, that the simple presence of a tribunal in the country where crimes were committed is not sufficient to render it more impactful. There are several areas in which the potential outcomes of the ECCC on Cambodian society can begin to be evaluated: (1) its impact on the Cambodian judiciary, (2) its ability to provide a sense of justice to the Khmer Rouge's victims, and (3) its role in the production of new historical narratives and new normative visions for the direction of Cambodian society.[34]
One ostensible benefit that the ECCC could bring is development of legal capacity and training of legal personnel. It is possible to exaggerate the potential impact of the ECCC on the domestic judiciary, however, and assertions such as those of Deputy Prime Minister Sok An that the ECCC could serve as a "model court"[35] for Cambodia seempotentially over-stated considering that Cambodian courts are unlikely to come into the vast resources available to the ECCC.[36] However, it has also been argued that the trainings in international law that Cambodian lawyers have received in conjunction with the ECCC will contribute positively to Cambodian participation in the international legal arena in the future. A conference held in Phnom Penh in October 2009 emphasized the progress made in Cambodia in establishing international legal standards. The meeting, "Rome Statute and Cambodia: Implementation of International Standards in Cambodia," highlighted Cambodia as the only Southeast Asian country to have ratified the Rome Statute and identified its importance in increasing Asian representation at the International Criminal Court.[37]
The tribunal has also provided a space around which many Cambodian civil society groups are organizing. For example, the Cambodian Human Rights Human Action Committee (CHRAC), which describes itself as "a coalition of 21 NGOs working in the fields of human rights, democracy and the rule of law,[38] has been involved in efforts to assist victims in filing civil party applications, to lobby for changes in the role of civil party participants in the proceedings, and to ensure adequate protections through victim-oriented programs.
A second area in which to evaluate the effects of the ECCC is its ability to mete out justice which is acceptable and meaningful to victims of the Khmer Rouge. CHRAC notes that they have aided almost 4,500 victims in submitting complaints or applications to the court, asserting that this represents a "clear indication of the strong interest and the desire of victims to actively participate in the legal proceedings."[39] Moreover, attendance to the tribunal's proceedings at some of its key points has been considerable. On the last day of Duch's trial, for example, more than 4,000 people attended the closing arguments.[40]
A larger concern is whether this participation is sufficient to achieve something that could be considered as "reconciliation" in broader Cambodian society. Some have argued that the establishment of a truth commission alongside the court could render proceedings more inclusive and successful in the aim of producing a historical record of crimes committed in Democratic Kampuchea,[41] but Bickford concludes that "a truth commission is unlikely because local NGOs and the international community have put so much energy into the creation of the Khmer Rouge trial that they are now dedicated to making it work."[42] The reparations mandate of the tribunal is also quite narrow; the court may only award "collective and moral reparations," which may be sought only through participation as a civil party; no material or individual reparations will be made available, and the tribunal will therefore not enhance the material well-being of victims.[43]
A final dimension of the ECCC's potential impact is its contribution to the historical record. Despite fairly extensive (largely English-language) knowledge of the Khmer Rouge period, the mechanisms through which to interpret and come to terms with the past in Cambodian society have been relatively few and often manipulated by political elites.[44] The Documentation Center of Cambodia (DC-Cam) has been particularly active in creating educational programs and a "Living Documents" project which sponsored individuals from rural areas in Cambodia to attend the trials as representatives of their communities for a week and then worked to establish discussion forums in these communities led by the representatives and DC-Cam staff members.[45]
While efforts like these seem quite promising, a broader problem is how apt a mechanism the tribunal is to provide a complete picture of historical events. This relates fundamentally to the question of the effect of international politics on the tribunal. The mandate of the ECCC is restricted to investigating crimes between 1975 and 1979 and crimes committed by senior Khmer Rouge members. This mandate thus avoids authorizing investigation of crimes committed during the civil war in Cambodia, including subjects such as the US bombing of Cambodia, which occurred before 1975 but is often discussed as a key factor in the rise of the Khmer Rouge.[46] It also excludes crimes committed after 1975 that may have been committed in the on-going war with the Khmer Rouge,[47] as well the potential role of prominent members of the Cambodian government in the Khmer Rouge.[48]
How sufficient will this mandate be in bringing to light areas of the historical record important for reconciliation? The Phnom Penh-based Centre for Social Development, as part of its Khmer Rouge and National Reconciliation project, gave participants in Phnom Penh, Battambang and Sihanoukville a questionnaire that asked them to answer the question, "Which solutions can bring about a true national reconciliation?" More than 56 percent of respondents chose "The trial should apply to persons from all regimes both before 1975 and after 1979 and not just to the Khmer Rouge leaders" as their first answer.[49] Similarly, DC-Cam compiled a list of responses from participants in their tours of the ECCC who had been asked what further questions they had about the tribunal. Examples of typical questions included "if countries which supported the Khmer Rouge will be tried," "if former Khmer Rouge village leaders who directly carried out killings will be tried," "if other countries knew about the genocide while it was occurring," and "why the Khmer Rouge were given the seat representing Cambodia in UN General Assembly."[50] These areas, unfortunately, remain difficult political questions with which Cambodia and the international community more generally will have to continue to grapple.
Conclusion: Lessons for the Future Direction of International Justice
The flaws in the ECCC's legal proceedings thus far have led some commentators to dismiss it as substantiating the need for the standardization of international justice proceedings under the auspices of the International Criminal Court. "The hope with establishing the ICC," Beth van Schaak, a law professor at the University of California Santa Clara told The LA Times, "was that it would obviate the need for ad hoc courts."[51]
Others, however, do not expect the ICC to make ad hoc tribunals obsolete, at least any time in the near future. A number of legal scholars have pointed towards possible complementary relationships between the ICC and hybrid tribunals; both in the short-term to strengthen local judiciaries in conjunction with the emergence of an effective international judiciary and in the long-term to enforce accountability for lower-level perpetrators and crimes outside of the ICC's jurisdiction.[52]
The ECCC demonstrates, however, that the format of war crimes tribunals remains, in reality, more a function of political possibility than the ability to assess objectively the costs and benefits of different models. Moreover, it suggests that the benefits of international punitive justice to post-conflict societies are by no means a foregone conclusion. Regardless of where these proceedings are located, there is contradictory evidence regarding their impact and a lack of clear standards for assessing this impact. Finally, the conflicts emerging within the ECCC between international and national legal personnel forebodes issues that the ICC as the first permanent ex ante tribunal, will almost certainly have to face repeatedly in the future.[53] This suggests that whatever models of international justice are pursued, more sophisticated methods of negotiating apparent contradictions in legal and political factors are needed in the theory and practice of international criminal law.
[1] Extraordinary Chambers of the Court of Cambodia. "Publications."
[2] See Kenneth Rodman. "Darfur and the Limits of Legal Deterrence," Human Rights Quarterly, 30 (2008): 530-560.
[3] See Mamdani. "The New Humanitarian Order," The Nation, 29 Sept. 2008: 17-22.
[4] Project on International Courts and Tribunals. "Hybrid Tribunals," http://www.pict-pcti.org/courts/hybrid.html< /a>, accessed 20 February 2010.
[16] Rudolph. "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," 675.
[17] Chigas. "The Politics of Defining Justice After the Cambodian Genocide," 257.
[24] Brady. "Flaws Mar Cambodia's First Khmer Rouge Trial," 33.
[25] Thierry Cruvellier. "Duch Trial Ends with a Twist," International Justice Tribune, 9 Dec. 2009, available at http://www.rnw.nl/int-justice/a rticle/duch-trial-ends-twist.
[26] Neha Jain. "The Khmer Rouge Tribunal Paves the Way for Additional Investigations," The American Society of International Law, 2 December 2009, available at http:/ /www.cambodiatribunal.org/cic_images/CTM/asil%20insight%2012-2-09.pdf.
[27] Neha Jain. "The Khmer Rouge Tribunal Paves the Way for Additional Investigations," 4.
[28] BBC Monitoring Asia Pacific. "Cambodian Peoples' Party Warns Court Trying Former Khmer Rouge Leaders," translation from Reaksmei Kampuchea, Phnom Penh, 8 Jan. 2010.
[29] Brady. "Flaws Mar Cambodia's First Khmer Rouge Trial."
[30] Jörg Mezdel notes rightfully that "Reconciliation is a term that has been widely used and abused in Cambodia and around the world in order to legitimize political deals that would otherwise be considered unethical." See Jörg Menzel. "Justice Delayed or Too Late for Justice: The Khmer Rouge Tribunal and the Cambodian 'Genocide' 1975-1979," Journal of Genocide Research 9.2 (2007): 225. However, the question of how to adjudicate claims made on the basis of national reconciliation is one for which the ECCC has been required to produce a determination, and this issue is by no means resolved in the broader tradition of international criminal law.
[31] Neha Jain. "The Khmer Rouge Tribunal Paves the Way for Additional Investigations," 5.
[32] Cohen. "Hybrid Justice in East Timor, Sierra Leone, and Cambodia: Lessons Learned and Prospects for the Future," 18.
[33] Ibid., 22.
[34] Jörg Menzel, drawing from statements of the Cambodian NGO community, suggests four areas in which to evaluate the tribunal: justice for victims, reconciliation, historical truth, and exercise in law. See Menzel. "Justice Delayed or Too Late for Justice: The Khmer Rouge Tribunal and the Cambodian 'Genocide' 1975-1979," 225-226.
[35] qtd. in ibid., Menzel 227.
[36] Ibid.
[37] Marien. "The Khmer Rouge Tribunal in International Perspective."
[38] Cambodian Human Rights Action Committee. "CHRAC Urges ECCC to Consider Victims' Rights with Care," 1 February 2010.
[39] Ibid.
[40] The Extraordinary Chambers of the Court of Cambodia. "Outreach Program."
[41] See Jaya Ramji. "Reclaiming Cambodian History: The Case for a Truth Commission," Fletcher Forum of World Affairs 24 (2000).
[42] Louis Bickford. "Unofficial Truth Projects," Human Rights Quarterly 29.4 (2007): 1022.
[43] Carranza, Ruben. "Imagining the Possibilities for Reparations in Cambodia." International Center for Transitional Justice, available at http://www.ictj.org/cic_images/conte nt/9/5/950.pdf.
[44] The PRK government established such rituals as "National Anger Day" and established a tribunal to try Pol Pot and Ieng Sary in absentia for the crime of genocide. This has sometimes been discredited as a "show trial" designed to consolidate PRK power, although foreign lawyers participating in the proceedings have challenged this interpretation. See Helen Jarvis. "A Personal View of the Documents of the People's Revolutionary Tribunal," Eds. Howard J. De Nike, John Quigley, and Kenneth J. Robinson, in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, Philadelphia: University of Pennsylvania Press, 2000.
[45] Documentation Center of Cambodia. "Living Documents," available at http://www.dccam.or g/Projects/Living-Doc/Living-Documents.htm, accessed 28 Feb. 2010.
[46] See Ben Kiernan. The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-1979, New Haven: Yale University, 2002, 7.
[47] Menzel. "Justice Delayed or Too Late for Justice: The Khmer Rouge Tribunal and the Cambodian 'Genocide' 1975-1979," 218.
[48] Heder and Tittemore. Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge, 16.
[49] Hayes, Michael. "Cambodia: Trial of Khmer Rouge Takes Shape After 27 Years." IRIN.
[50] See Dacil Q. Keo. "Report on the 8th ECCC Tour: Sept. 25-26, 2006," 3 Oct. 2006, available at http://www.dccam .org/Projects/Living-Doc/8th-ECCC-tour-report.pdf, as well as other DC-Cam ECCC tour reports.
[51] Qtd. in Brady. "Flaws Mar Cambodia's First Khmer Rouge Trial."
[52] See Maria Carmen Colitti and Luigi Condorelli and Theo Boutruche in Cesare P.R. Romano, Andre Nollkaemper, and Jann K. Kleffner, eds., Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia, Oxford: Oxford University Press, 2004.
[53] Jain, 5.
