Written by Peter Manning.
It is nearly four decades since the Khmer Rouge ruled Cambodia. Between 1975 and 1979, 1.6 million died from starvation, disease or were executed as the Khmer Rouge sought to engineer a ‘classless’ and ethnically ‘pure’ society. Today, the Extraordinary Chambers in the Courts of Cambodia (ECCC) – commonly also known as the Khmer Rouge Tribunal or Khmer Rouge Trials – have been tasked with the prosecution of “senior leaders” and those “most responsible” for crimes perpetrated during the Khmer Rouge regime.
Established in 2006, the ECCC is an important exercise within the wider landscape of transitional justice. It is one of a wave of ‘hybrid’ tribunals that combine international and national control, working as an ‘internationalised’ tribunal within Cambodia’s domestic judicial system, with key adjudicative bodies comprised of both international and national judicial staff. The hybrid model was presented as a way to increase the resonance of proceedings for victims groups, enhance domestic judicial capacity, and to contribute to the rule of law more broadly. Moreover, although the ECCC is a principally retributive mechanism, it offers innovative roles for victims to participate and speak within proceedings, as well as opportunities for forms of collective reparations.
As critics contend that domestic politics has sullied a search for justice, we might remind ourselves of the international politics that shaped the ECCC: limiting the jurisdiction to the years between 1975 and 1979 was a condition for the establishment of the tribunal on the UN side, preventing scrutiny of the hundreds of thousands killed by US carpet bombing in the early 1970s, or Chinese and Western patronage of the Khmer Rouge during the bloody civil war that followed their years in power.
To date, the ECCC has concluded two cases. In Case 001, Duch, the former head of the ‘S-21’ interrogation and extermination centre, was found guilty of crimes against humanity and sentenced to life imprisonment. A second case prosecuting senior Khmer Rouge leaders, whose ailing health has seen two out of four defendants escape verdicts, was split into smaller sections to expedite proceedings in 2012. Case 002/01 focused on the evacuation of Phnom Penh, and purges carried out around population transfers of the early stages of the regime, finding Khieu Samphan and Nuon Chea guilty of crimes against humanity in 2014, and sentencing each to life imprisonment. Case 002/02, which has recently heard closing arguments with a verdict expected later this year, examines the thorny issue of genocide charges for violence perpetrated against Cham Muslim, Vietnamese and other minority groups, as well as questions of gender based violence that include forced marriage and rape.
A final set of potential cases now face an uncertain future. Cases 003 and 004 investigate a number of former high ranking Khmer Rouge officials but have faced stiff opposition from the Cambodian government, with Prime Minister Hun Sen labelling them a threat to peace and “national reconciliation”. Critics damningly argue that such opposition amounts to interference in the judicial process and the Cambodian state protecting favoured clients. Given the conclusion of substantive proceedings in the ‘headline’ Case 002 and, amid several years of budgetary and funding challenges, it is likely that Cases 003 and 004 will be put on hold indefinitely.
As the ECCC approaches the (likely) conclusion of its proceedings, debates over the legacy, successes and failures of the trials have been foregrounded. Yet questions of how we might begin to think about success or failure at the ECCC are themselves outstanding and disputed. For some, the ECCC ‘hybrid’ model was always a substandard alternative to a fully international – and therefore politically ‘untainted’ – mechanism from the outset. While the ECCC prosecutions do only focus on the handful of figures permitted by the Cambodian government, condemning the tribunal on such scores neglects the reality that selective prosecutions are a routine feature of transitional justice. Indeed, such objections seem less attuned to the way that transitional justice was, as a self-designating field offering its first iterations in the early 1990s, centrally constituted by questions over the political compromises necessary to ensure democratisation and peace in the wake of violence.
As critics contend that domestic politics has sullied a search for justice, we might remind ourselves of the international politics that shaped the ECCC: limiting the jurisdiction to the years between 1975 and 1979 was a condition for the establishment of the tribunal on the UN side, preventing scrutiny of the hundreds of thousands killed by US carpet bombing in the early 1970s, or Chinese and Western patronage of the Khmer Rouge during the bloody civil war that followed their years in power. In this light, the prevailing critiques of political interference follow from a ‘legalism’ that is de-historicising in the way it suppresses the conditions of the existence of the court. Perhaps more importantly, for many Cambodians, questions over the selectivity of the ECCC jurisdictions remain vexed when former lower level perpetrators live among the communities that suffered them, or had relatives who were lost in the violence before and after the Khmer Rouge ruled.
It is often noted that exercises such as the ECCC offer forms of punishment and redress that can likely never match the scale of the crimes committed. In considering questions of legacy, success and failure, we might then be attentive to the way ECCC representatives have articulated various visions of justice. In Cambodia, justifications for the ECCC and its aims have moved markedly, from claims rooted in the intrinsic value of accountability, to more utility framed appeals to the beneficial civic outcomes prosecutions might yield, and back again. Moreover, as the work of the court progressed, the space and role of victim groups participating in the ECCC proceedings as a form of restorative justice has developed, offering high profile designated testimonial sessions for (some) victims to speak about their experiences.
The importance of victim participation is, in part, an emergent feature of the ECCC process but is now a key priority in debates over legacy, success and failure. In other words, avenues and criteria for success or failure are reflexive criteria that the court, its staff, and partners work contingently ‘with’ rather than externally toward. We might here pay closer attention to the way that transitional justice interventions are authored over time by different stakeholders, working as palimpsests onto which different priorities, projects and goals are written. Indeed, important aspects of the Cambodian transitional justice landscape that are often eclipsed by the heated debates over political interference are the wider raft of interventions and projects at work in partnership with or around the court. These are often ‘grassroots’ forms of NGO activity, such as trauma awareness raising, the development of mobile educational tools and resources to assist education about the Khmer Rouge atrocities, or community led memorialisation projects.
How have Cambodian communities received the work of the ECCC and how will they gauge its legacy? Transitional justice scholarship and advocacy has recognised that engaging domestic audiences is key to the legitimacy of its interventions, foregrounding questions of outreach and public education as key avenues for securing the efficacy of its work. From its establishment, the ECCC has been helped (and in many respects carried) by a raft of NGO-led outreach campaigns that seek to call attention to the work of the court and offer opportunities for Cambodian communities to participate in proceedings. Yet there also remains a tendency to conceive of outreach to Cambodian communities as a one-directional exercise. For example, registering support for the ECCC through the number of visitors, or assessing engagement on passive terms (were people aware of the work of the ECCC). The assumption, it seems, is that if communities know about the ECCC, the public will be satisfied, instead of recognising the way Cambodian communities actively negotiate a varied relationships to the work of the court.
These relationships are often (but not always) enthusiastic, despite being well attuned to the multiple politics of the ECCC. They can also be ambivalent and apathetic in their own rights. Two further problems are important to bear in mind here. On the one hand, we need to be attentive to how outreach, across its varied forms, works to constitute its ‘publics’, shaping expectations about what transitional justice processes involve and can deliver, and the disappointments that arise thereupon. On the other, we must also be sensitive to the way that the ‘story’ and account of violence animated by any given transitional justice mechanism often poorly corresponds to the experiences and memories of the communities to which they are addressed. Given that the ECCC – like all transitional justice mechanisms – is freighted by a normative language that promises a comprehensive justice, healing and reconciliation – the “illusion of resolution” – problems of expectation management are unsurprising – often emerging exactly as justice is said to have been done – as complaints over delays to proceedings, costs, or the leniency of verdicts are heard, for example.
The ECCC is likely to enjoy a complex and conflicted legacy in Cambodian public and political life that belies a tendency to overstate its successes and, contrarily, unconditionally condemn its failures. The achievements of the court are significant in no small part because Cambodian communities – despite the glacial proceedings, glaring costs, and well aware of the multiple politics implicated – were told that they mattered. Some, but not all, have been invested in the process thereupon. Exploring the variability and limits of these relationships will likely be the best avenue for understanding the legacy of the ECCC.
Peter Manning (@phnompete) is a Lecturer in Sociology in the Department of Social and Policy Science at the University of Bath and author of Transitional Justice and Memory in Cambodia (Routledge 2017). Image credit: CC by Khmer Rouge Tribunal (ECCC)/Flickr.