The Challenges of Transitional Justice in Cambodia

This essay is part of the Middle East-Asia Project (MAP) series on “Pathways to Transitional Justice in the Arab World — Reflections on the Asia Pacific Experience.” The series explores the pursuit of transitional justice in the post-Arab Spring Middle East, and how such efforts could be informed by past and ongoing justice processes in Asia-Pacific countries. See Resources …
 

An internationalized transitional justice process has been underway in Cambodia for some years and appears to be nearing a conclusion. This retributive justice process—formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC) and informally called the Khmer Rouge Tribunal (KRT)—was designed to achieve accountability for gross human rights violations between 1975 and 1979, when Cambodia was ruled by a political movement known as the Khmer Rouge.[1] The ECCC has generated useful lessons for other countries that may be considering a similar exercise. This essay will review a few of those lessons, including (1) political obstacles to ensuring accountability for human rights violations; (2) challenges and limitations of the tribunal model; (3) costs and benefits of amnesties; (4) potential alternative justice mechanisms such as truth commissions, reparations, and apologies; and (5) the consequences of justice too soon and justice delayed.

The ECCC is actually the second internationalized court to try senior leaders for human rights violations during the Khmer Rouge regime. The first court, convened in August 1979, was known as the People’s Revolutionary Tribunal, or the PRT.[2] The PRT was presented as a domestic judicial proceeding, but in reality it owed much to support from states such as Vietnam and East Germany. It was also as much a strategic political maneuver as it was an exercise in justice. Most of the personnel in the regime that succeeded the Khmer Rouge had been members of the Khmer Rouge, and consequently the new leadership felt a need to distinguish itself from its predecessor in the eyes of both the Cambodian people and the international community. In this sense, the PRT aimed to confer domestic and international legitimacy upon the new regime. The new regime also hoped that by prosecuting only two of the senior leaders from the Khmer Rouge regime, they might encourage defections from the remainder of their former colleagues still in resistance.

The public proceedings of the PRT lasted scarcely one week, and critics found much to fault in the technical quality of the trial. The tribunal prosecuted Pol Pot, who was Secretary of the Communist Party of Kampuchea and Prime Minister of Democratic Kampuchea, and his brother-in-law Ieng Sary, Deputy Prime Minister and a member of the Communist politburo. Both were found guilty of genocide and sentenced to death. However, the prosecutions were conducted in absentia, while Pol Pot and Ieng Sary busied themselves with reconstituting their defeated army and commencing what would turn out to be a 20-year insurgency. A majority of the international community not only ignored the PRT but also snubbed the de facto regime that staged the trial, awarding Cambodia’s United Nations seat to the now-exiled Khmer Rouge. Recognizing that its bid for international legitimacy had fallen short, the new regime began to demand that another tribunal be established, this time fully internationalized. It would be a quarter century before this demand came to fruition.

In that intervening period, all manner of amnesties were granted. The de facto Cambodian regime offered amnesty to members of the Khmer Rouge who agreed to change sides, and many took advantage of the offer. When the Soviet Union, China, and the United States decided in 1991 to terminate what had in many respects been a proxy war, they imposed a peace settlement upon the Cambodian factions that included an effective amnesty for the Khmer Rouge leadership. After the Khmer Rouge abandoned the peace process and returned to armed resistance, the new Cambodian regime renewed its offers of amnesty to Khmer Rouge members. Finally, in 1996, Ieng Sary negotiated a pardon and amnesty for himself and led approximately two-thirds of Khmer Rouge military units to “rejoin the national community.” That move generated considerable opposition, both domestically and internationally, with Amnesty International leading a full-throated charge against it. Other observers judged that the Ieng Sary amnesty could hasten the day when hostilities were finally terminated, thereby helping to create a political situation in which a transitional justice process could be organized. This eventually proved to be correct, and Ieng Sary’s amnesty was ultimately no bar to his prosecution by the ECCC.

After more than a quarter century of negotiations, the Khmer Rouge Tribunal commenced operations in 2006.[3] The long gestation of the KRT resulted from myriad domestic and international political complications. While the Soviet Union, China, and the United States were funding a proxy war in Cambodia, there was no prospect of a broad agreement on an international tribunal. As the Cambodian war moved toward a settlement, international concerns endured; the United States feared that a Cambodia tribunal might attempt to prosecute U.S. statesmen such as Henry Kissinger as war criminals, while the Chinese felt that prosecuting the leaders of an Asian Communist revolution for the deaths of millions of people was simply a bad precedent. Within Cambodia, the ruling party insisted on arrangements that would ensure that they could control any potential unanticipated developments. It took many years of painstaking negotiations to arrive at a formula that satisfied the concerns of the Cambodian government, the UN, and the donor community.

Amidst these delays, some Cambodian human rights activists advocated the establishment of a truth commission as an alternative, or, since the KRT was established, as an adjunct to a tribunal. They argued that it might be more likely for perpetrators to tell the truth about what happened during the Pol Pot regime if they did not face prosecution. With the final collapse of the Khmer Rouge movement at the end of 1998, the Cambodian government briefly explored the possibility of establishing such a commission. After consultations with South Africa’s Desmond Tutu about what a truth commission actually involves, however, the government dropped the idea. Since coming to power in 1979, the ruling party has heavily publicized its own version of historical “truth.”It may have decided that there was no need to risk the possibility that competing versions of history might be introduced and gain currency among the public.

Until the advent of the KRT, reparations had never been seriously considered as an option to achieve justice for Khmer Rouge atrocities. Indeed, what sorts of reparations are feasible in the face of millions of victims? Under the KRT’s civil law structure, however, victims can apply to become civil parties in legal actions parallel to the criminal case, and in the event of a criminal conviction, civil parties can claim reparations. In practice, this scheme has been highly circumscribed and far from satisfactory for most civil parties. In the KRT’s first case, against Khmer Rouge secret police chief Kaing Guek Eav alias Duch, nearly 100 people applied for civil party status. In the final judgment, 51 of them were accepted as civil parties. The court strictly limited the nature of reparations awards. Reparations were to be taken from assets of convicted persons, but all accused persons at the ECCC were declared indigent by the court. Consequently, reparations were limited to “collective and symbolic” measures. Much confusion ensued as to what “collective and symbolic” meant, with many victims requesting awards such as cash, mental and physical health services, memorials, and other tangible things. In the end, civil parties in the Duch case were awarded only the right to have their names listed in the final verdict and to receive a written compilation of apologies that had been uttered or written by Duch.

In the second case, originally against four senior cadres (but ultimately trying only two of them), some 4,000 civil parties applied. As of this writing, it remains to be seen if the accused will be convicted, and if so, how reparations will work. The court’s Civil Party attorneys have been attempting to attract outside contributions to fund reparations, albeit with little success. The Trial Chamber has in principle accepted proposals for three categories of reparations awards, encompassing “remembrance and memorialization,” “rehabilitation,” and “documentation and education.”The Trial Chamber has also indicated that it will consider awards only to the extent that Civil Party attorneys can prove that outside funding has been secured to underwrite the award. The Cambodian government has meanwhile declared that it approves the granting of several types of reparations, including a national commemoration day, the preservation of crime sites, and the construction of a museum, library, and monument. Reparations remain a deeply fraught topic at the ECCC.

Duch, who was sentenced to life in the first KRT trial, apologized profusely during his trial, but at the very end insisted that he had suffered enough and asked to be acquitted and released. Many victims were deeply offended by his performance. Some civil parties were repelled that their reparations consisted of nothing more than a list of what they perceived as insincere apologies from Duch. In the second trial, accused leaders Nuon Chea and Khieu Samphan offered partial apologies, but their denial of any legal responsibility for the crimes negates those apologies for many victims, effectively adding insult to injury. Apology is a very tricky proposition when there are hundreds of thousands, even millions, of dead victims.

Cambodia also provides examples of the costs of pursuing a retributive justice solution too soon after the events in question, as well as of pursuing one too long after the alleged crimes. It can be argued that the 1979 trial was convened too quickly, only seven months after the Khmer Rouge regime fell. Given the gravity of the crimes, that was perhaps not long enough to assemble evidence, particularly crucial links tying the accused to the crimes, which were indeed entirely absent in the trial record. Moreover, given the in absentia character of the proceedings, the 1979 trial also lacked actual accused persons in court facing justice. This imbued the proceedings with a rather ephemeral character, rendering them entirely symbolic and making it easy for many to dismiss the trial as mere propaganda.[4]

Similarly, it can be argued that the proceedings of the ECCC came too late. It was certainly too late for accused persons Ieng Sary, who died in the midst of his trial, and Ieng Thirith, who was declared unfit for trial due to dementia. Numerous potential candidates for prosecution—including chieftain Pol Pot, Southwest Zone Secretary Ta Mok, Central Zone Secretary Ke Pok, Defense Minister Son Sen, and Commerce Minister Van Rith, among others—expired before the proceedings got fully under way. The difficulties of assembling evidence of the crimes decades after they were committed should also not be underestimated. The frailty of human memory becomes acutely evident after so much time has passed. Crime scenes become hopelessly contaminated and even vanish completely. Documentary evidence is also progressively lost, and the chain of custody required to demonstrate the provenance of the material becomes inexorably more ambiguous over time. Convening a tribunal too soon or too late can rob it of much of its utility.

Notwithstanding the challenges of the tribunal model—getting the timing right, ensuring that the proceedings will attract domestic and international legitimacy, finding adequate funding, incorporating appropriate elements of reparations and victim participation, deciding on the right list of persons to prosecute, and so on—retributive justice has some advantages.[5] Foremost is the sense of justice that many victims demand after episodes of mass atrocity. It is also important for society to formally condemn the ideologies and policies that give rise to such atrocities, and a public trial is an excellent venue in which to enact such condemnations. A properly conducted truth commission may well generate a more complete historical record, but trials can also unearth a great deal of information about precisely what happened in the course of serious human rights violations. Finally, an often overlooked but crucial feature of trials is the impact they have upon the public: in Cambodia, the trials shattered a long-standing taboo about discussing the Khmer Rouge. The topic is now incorporated into school curricula, children are finally getting answers from their parents, and neighbors share memories with each other. This effect emerges organically from the very existence of a criminal process, and it helps to knit back together the social fabric that has been torn asunder by violence.

All of the transitional justice techniques discussed here—trials, truth commissions, amnesties, apologies, and reparations—may or may not be appropriate to any particular national context. It may be most effective to apply them singly or in a sequenced combination. Timing is also important; there is such a thing as too soon as well as too late. And the political context is critical. If a given transitional justice measure is regarded as illegitimate by significant domestic and/or international constituencies, or if it is opposed by important regional or global powers, it may end up doing more harm than good. Consequently, transitional justice remains very much an art rather than a science.