Challenges in the Quest for Justice in Cambodia Rudina Jasini 8 June 2010 Characterised as a corporate body in abrupt transition, fractured and disturbed for decades in every conceivable way, 1 Cambodia today faces challenges in the quest for justice over how much to acknowledge, how to treat the perpetrators and victims of crimes under the Khmer Rouge regime, and how to recover. 2 The unique matrix of factors dominating Cambodia s transitional society renders the pursuit of justice challenging and complex. Holding individual members criminally accountable for crimes committed more than thirty years ago presents significant challenges. Adding to the difficulty are the perceived limitations and corruption overshadowing the domestic criminal justice system, as well as the political power wielded by the government. 3 These challenges are further exacerbated by the legal and structural challenges of a criminal tribunal in which victims and their legal representatives participate in the courtroom together with prosecution and defence. While acknowledging the wide spectrum of challenges overshadowing the quest for justice in Cambodia, this paper analyses the key social- cultural and legal- political challenges, seeking to deepen the understanding of the complexity of the Cambodian transitional justice model. No matter how profound the challenges, no society can allow genocide to go unpunished, lest it lose any claim to moral legitimacy. The duty to prosecute human rights violations is no less pressing when decades have elapsed, especially where the effects are still being felt throughout all sections of Cambodian society. 4 As Minow has rightly asserted, dwelling in the frozen space of inability and incapacity is unacceptable, unresponsive to victims, unavailing to the waiting future. 5 This imperative makes the attempt to act for victims invaluable. Legal responses to societal- legal atrocities are inevitably frail and insufficient, 6 and as Langer has observed, the logic of law will never make sense of the illogic of genocide. 7 The struggle for justice in Cambodia has long been a cherished aspiration, since almost no Cambodian was spared the ravages of the Khmer Rouge. The Extraordinary Chambers in the Courts of Cambodia (ECCC), established under the agreement between the Government of Cambodia and the United Nations in 2003, was conceptualized as the most appropriate institutional response. The structure and 1 Wilshire, Bruce Get 'Em All! Kill 'Em!: Genocide, Terrorism, Righteous Communities, Lexington Books (2005), p.70. 2 Minow, Martha Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Beacon Press. (1998) p. 2. 3 Bates, Alex Cambodia s Extraordinary Chamber: Is it the most effective and appropriate means of of Genocide. International Comparative and Contextual Aspects, Ashgate. (2007) p.185. 4 Ibid. 5 Minow, Martha Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Beacon Press. (1998) p.4. 6 Ibid. 7 Langer, Lawrence, L. Admitting the Holocaust New York: Oxford University Press. (1995), p.171. Oxford Transitional Justice Research Working Paper Series 1
organisation of the ECCC is unmatched in the realm of international criminal tribunals. Its distinctive features are many, but what makes this tribunal particularly exceptional is the enhanced role afforded to victims. Any examination of the unique approach to transitional justice in Cambodian post-conflict society should be made with a view to the social-cultural and legal-political aspects, and to the specific needs of the society. Only by analysing the effects of such factors is it possible to properly understand the scope and parameters of the specific transitional justice mechanism in Cambodia. Social and Cultural Challenges Cambodia today is largely a product of recent revolution and continuing war. 8 Characterised by changelessness 9 as a society resistant to transformation, Cambodia was long considered as a sort of ethnographic black hole. 10 Cambodians are often described as people with a particular attitude towards authority, and it is part of a more fundamental Cambodian concern that situations be clearly defined, and that people do the proper thing at the proper time. 11 A thorough examination of the Cambodian genocide will reveal more about its social and cultural roots. As Hinton has asserted, genocide is apocalyptic, as it requires a form of world destruction in the service of a vision - or collective fantasy - of absolute political and spiritual renewal. 12 In that respect, the mass killing in Cambodia followed an order noted in every genocide: a sense of profound collective dislocation and humiliation, and ideological vision of revitalisation and total cure, which comes to include a vast program of killing to heal; in an unending quest for national purification. 13 However, the reintegration of many thousands of former Khmer Rouge cadres into the population poses considerable difficulty in fully addressing the Pol Pot atrocities. When asked why they participated in the mass killings, many former Khmer Rouge cadres, like most perpetrators of genocide, have claimed that they were just following orders. 14 This sense of obedience to the demands of authority is a striking element of the Cambodian society, which strongly manifested during the reign of the Khmer Rouge. To date, there has been no major review of Cambodian society to measure the degree of support for the establishment of an accountability mechanism. However, a number of small-scale, largely unscientific surveys have indicated that the majority of those interviewed have expressed strong support for prosecutions, and specifically for the inclusion of victims in that process. Strong interest has also been expressed in the fairness of the trials, along with support for the 8 Kiernan, Ben The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-79. Yale University Press. (2002) p. xvii. 9 Chandler, David A History of Cambodia. Westview Press. (2008) p.14. 10 Kiernan, Ben Genocide: Conceptual and Historical Dimensions in G Andreopoulos, ed. University of Pennsylvania Press, (1994) p.192. The most detailed survey is probably that of anthropologist May Ebihara, author of Sway: A Khmer Village in Cambodia. 11 Steinberg, David et al. Country Survey Series: Cambodia, its people, its society, its culture, Hraf Press New Heaven. (1957), p.6. 12 Hinton, Alexander Why did they kill? Cambodia in the Shadow of Genocide. University of California Press. (2005), p.277. 13 Ibid. 14 Ibid., p.278. Oxford Transitional Justice Research Working Paper Series 2
application of international standards of justice. 15 This support is strongly related to perceptions of the Cambodian criminal justice system, which has been governed by political rather than judicial power, and where important principles of justice appear to be disregarded. 16 Many believe that Khmer Rouge was brought about by a mere handful of leaders, and that responsibility for the genocide should therefore lie with this small group. From this perspective, the Khmer Rouge cadres who executed the orders received from above are in a sense excluded from responsibility, having committed them under pain of death from their superiors. 17 These expectations of Cambodian society expose one of the major challenges for transitional justice in Cambodia. Trials might provide a more nuanced picture of what transpired during the Khmer Rouge regime. Such a picture might reveal what has been described as more of a bottomup than a top-down model of responsibility, i.e., a scenario in which lower-ranking cadres do indeed bear significant responsibility. 18 As Becker has illustrated, the Tuol Sleng archives show that the entire Party was involved and implicated in Pol Potism. 19 This view could well have a significance on the process of reconciliation and the way history is taught. Therefore, a comprehensive educational programme focused on the newly expanded understanding will be necessary. Only by receiving accurate information can Cambodians move from idealistic to more realistic expectations. Another aspect of Cambodian society that complicates the quest for justice relates to dimensions of cultural and religious practice. In an almost exclusively Buddhist country, 20 Cambodians views on justice focus mainly on reconciliation rather than retribution. 21 Within the Buddhist tradition, concepts such as acceptance, tolerance, and compassion often overshadow notions like accountability. The hierarchy of such values poses additional difficulties in the context of traditional criminal prosecutions. Criminal justice is often associated with the notion of accountability, and is strongly linked with the idea that justice must be served. A view that the perpetrator will be punished in the next life is hard to reconcile with the overall goal of the retributive justice or with ending impunity for those who committed gross abuses of human rights. 15 Question 13 of the DC-Cam Survey in Linton (2004), p.10. 16 Marx, Stephen Forgetting the Policies and Practices of the Past: Impunity in Cambodia, 18 Fletcher Forum for World Affairs. (1994), p.17. 17 Bates, Alex Cambodia s Extraordinary Chamber: Is it the most effective and appropriate means of of Genocide. International Comparative and Contextual Aspects, Ashgate. (2007), p.190. 18 Ibid. 19 Becker, Elizabeth Kampuchea in 1983: Further From Peace. Washington Post, 2 March 1983. A12. 20 Chandler, David A Hitory of Cambodia, Westview Press. (2008) 21 Harris, Ian Onslaught on Beings: A Theravada Buddhist Perspective on Accountability for Crimes Committed in the Democratic Kampuchea Period in Ramji and van Schaak. (2005). Oxford Transitional Justice Research Working Paper Series 3
Legal and Political Challenges The desire of the Cambodian government to retain ownership of the criminal proceedings in the ad-hoc tribunal comes at a steep price. To respond to the call for an independent and credible system of criminal law, as well as to comply with standards of international criminal justice, the Cambodian government must show great commitment to the fairness of the trials. Many concerns have cast shadows over the ongoing criminal proceedings in Cambodia. First and foremost, a system where judges, investigating judges and prosecutors are selected and appointed by the Government raises serious doubts about the abilities of Cambodian judges and prosecutors and their susceptibility to political influence. 22 Law is generally seen in Cambodia as an instrument to affirm the rightfulness of the power holders. 23 This is hardly surprising, since rulers throughout Cambodian history were seen to be above the law. There persists a limited concept of accountability of public officials. Moreover, although offences such as perjury, bribery, and coercion of witnesses exist in the criminal law in Cambodia, no criminal offence exists for interfering with the course of justice. 24 As in any effort toward transitional justice, the legal and procedural framework of the accountability mechanism in Cambodia is the greatest challenge. In particular, the ECCC faces challenges relating to personal jurisdiction. The crimes over which the ECCC have jurisdiction include those from the 1956 Criminal Code of Cambodia (homicide, torture and religious persecution), as well as international crimes such as genocide, crimes against humanity and war crimes. 25 On one hand, the Cambodian Criminal Code of 1956 has not been applied since the days before the Khmer Rouge, which presents challenges as to its applicability. On the other hand, the unfamiliarity of the Cambodian judges with the principles of international law and their applicability can also present a major problem. Moreover, a fundamental principle in any criminal trial is that an accused can be charged only with crimes that were established in law at the time the alleged offences were committed. That means that the law to be applied in the Khmer Rouge trial must be as it stood in 1975. This creates great challenges, since the definition of international crimes such as genocide and crimes against humanity has developed significantly since 1975, particularly with the recent establishment of the International Criminal Court. 26 The thirty-year delay since the commission of the atrocities in Cambodia also presents some great evidentiary challenges. This is more pronounced 22 See http://web.amnesty.org/library/index/engasa230052003. 23 Bates, Alex Cambodia s Extraordinary Chamber: Is it the most effective and appropriate means of of Genocide. International Comparative and Contextual Aspects, Ashgate. (2007) p.191. 24 Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period., 10 September 1992, passed during the United Nations Transitional Authority in Cambodia (UNTAC) 25 See The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (ECCC Law), with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), available at: http://www.eccc.gov.kh/english/cabinet/law/4/kr_law_as_amended_27_oct_2004_eng.pdf. Arts. 3-8. 26 Darcy, Shane (2008), OTJR Working Paper Series Oxford Transitional Justice Research Working Paper Series 4
in the context of a fragile tribunal, such as ECCC. These legal, procedural, and evidentiary challenges, including complexities in substantive law and gaps in procedural and evidentiary rules, undermine the ECCC s capacity to hold effective trials. While a product of many compromises, this hybrid tribunal managed to get off the ground in 2006, when the first five suspects were placed in the dock. Today, two cases are under way: the case against Kaing Guek Eav, alias Duch, the head of the infamous Tuol Sleng Prison in Phnom Penh (Trial Stage) and the case against Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith, all members of the regime s central committee (Pre-Trial Stage). 27 With only five suspects facing trial, there has been extensive debate as to whether this meets the criteria for the court s personnel jurisdiction. The challenges facing these trials are manifold, but it is the unique status granted to victims and their legal representatives in the trial proceedings that adds most to the legal and procedural complexity of proceedings, as well as to concerns about efficiency. Conclusions The Killing Fields 28 and Tuol Sleng 29 stand today as monuments of terror and suffering inflicted by a genocidal regime that plunged Cambodia into one of the most notorious of human tragedies. Today, victims of the Khmer Rouge strive for justice in the affirmation of atrocity. To Cambodians, the trials at the ECCC offer the premise for justice and truth. To the wider international community, the trials offer another step in the longstanding pursuit of universal human rights, and a prominent recognition that the atrocities of the Khmer Rouge were committed not just against the people of Cambodia but against all humanity. The complexity of the transitional justice mechanism in Cambodia is heightened in the light of social-cultural and legalpolitical challenges. More specifically, the ECCC faces challenges in successfully incorporating its victim-participation scheme into the court s procedural framework, since the scope and boundaries of such participation have not been clearly defined. Any attempt to define the ambit of such participation should be done with a view to the vital objectives of fairness and functionality of court proceedings. In spite of the considerable challenges that continue to face transitional justice in Cambodia, this response to the atrocities of the Khmer Rouge is invaluable. A close examination of the challenges facing the ECCC, and the overall transitional justice mechanism in Cambodia, can offer a premise for an understanding of how justice can be served in the context of Cambodian society. * Rudina Jasini, Jurist, LLM, MSc, is a DPhil Candidate at the University of Oxford Faculty of Law. Her practice and research encompass aspects of international criminal law, human rights and victims rights. She is currently a member of the Legal Defence in Haradinaj et al. case before the ICTY in The Hague. 27 See http://www.eccc.gov.kh/english/caseinfo001.aspx. 28 The Killing Fields are a number of sites in Cambodia where scores of thousands of people were killed and buried by the Khmer Rouge regime. 29 Tuol Sleng is a former high school which was used as the notorious Security Prison 21 (S-21) by the Khmer Rouge regime from its rise to power in 1975 to its fall in 1979. Oxford Transitional Justice Research Working Paper Series 5