Wednesday, May 28, 2008

Transitional Justice in Cambodia

One final post on my recent trip to Cambodia (flag at left) to observe the proceedings before the Extraordinary Chambers in the Courts of Cambodia. A challenge to the tribunal will be making its legal proceeding accessible to ordinary Cambodians, who may have only a rudimentary formal education.
Researchers and lawyers with the Documentation Center of Cambodia (DC-Cam) are travelling around the country (map, right) to interview survivors and former members of the Khmer Rouge and document their stories. These interviews will provide opportunities for Cambodians to participate in the upcoming trials before the Extraordinary Chambers of the Courts of Cambodia (ECCC). Part of this work has involved updating a set of complaints (the so-called Renakse Petitions) that were solicited in the early 1980s by the Vietnamese-backed People’s Republic of Kampuchea, which was placed in power after Vietnam invaded Cambodia (Kampuchea) in 1979 to oust the Khmer Rouge. DC-Cam is tracking down the authors of the Renakse Petitions to help them update their complaints and package them for submission to the ECCC, which will try surviving members of the Khmer Rouge (see photo below left—photo credit). For more on the origins of the Renakse Petitions, see here. This rolling work is the closest thing to a truth commission that Cambodia has ever had. Other transitional societies emerging from situations of mass violence and repression have staged truth commissions in order to provide an opportunity for victims to bear witness to the violence they survived under the prior regime.
The South African Truth and Reconciliation Commission also invited the participation of perpetrators, who could receive amnesty from prosecution if they met certain criteria and revealed details of the crimes they committed or to which they contributed. Our own IntLawGrrl Jaya Ramji-Nogales (below right) has been a longstanding advocate for a truth commission for Cambodia to complement the work of the ECCC. See Jaya Ramji(-Nogales), Reclaiming Cambodian History: The Case for a Truth Commission, 24 Fletcher Forum Of World Affairs 137 (2000). Regrettably, however, it is unlikely that the Royal Government of Cambodia or the international community will push for the establishment of a formal truth commission for Cambodia.
This makes the work of DC-Cam and other local organizations particularly important to personalize the quest for justice & accountability, as it will be impossible for the vast majority of the Khmer Rouge’s victims to participate in any meaningful way in the work of the ECCC. Moreover, only five individuals have been charged. With jurisdiction over only “senior leaders of Democratic Kampuchea [the Khmer Rouge] and those who were most responsible for the crimes,” the tribunal will not prosecute low to mid-level Khmer Rouge cadre who may have committed international crimes. The work of DC-Cam is thus necessary to dispel any misconceptions that only the top leaders were responsible for abuses. In fact, as research by Cambodian expert Steve Heder and others has shown, Khmer Rouge cadre were given considerable discretion to implement the sometimes cryptic directives from the Khmer Rouge Standing Committee, so some provinces suffered more than others. See Steve Heder, Reassessing the Role of Senior Leaders and Local Officials in Democratic Kampuchea Crimes: Cambodian Accountability in Comparative Perspective 377, in Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts (Jaya Ramji & Beth Van Schaack 2005).
These stories are equally as vital to building a shared national history of life under the Khmer Rouge and to further understand the patterns of obedience and violence during that fateful time. For many years, students in Cambodia were taught very little about the Khmer Rouge era. History courses simply skipped over the years 1975-79 with a mere mention of the Khmer Rouge. To rectify this, DC-Cam has recently released a hard copy and online textbook that can be used in high school classes around the country (right). The center has also embarked on a 3-year project to develop human rights curricula for the primary, high school, undergraduate, and graduate levels that will consider the causes and consequences of genocide and mass violence in a number of different settings, including in Cambodia.
In addition to the standard goals of the criminal law—achieving retribution, promoting deterrence, and expressing a community’s opprobrium about disruptive acts—international tribunals are often established with a host of ambitious objectives that include achieving national reconciliation, rehabilitating victims and perpetrators, creating a definitive collective history, and repairing broken societies. Like domestic criminal proceedings, trials before international tribunals do well at ascribing individual criminal responsibility to individual perpetrators, particularly from a “top down” perspective. They can also engage in useful norm enunciation, which can inform domestic efforts to legislate against and prosecute international crimes. Ongoing research on the results of the ad hoc criminal tribunals suggests that international tribunals may be less effective at achieving these other ambitions.
Given the limitations of international trials, the international community must be more active about promoting (and funding) alternative mechanisms within societies to address the crimes of a prior regime. These initiatives can reflect the particular socio-cultural, historical, artistic, religious, and legal culture and promote reconciliation, rehabilitation, reparation, and accountability on the community level. In Cambodia, such an effort could tap into the widely held Buddhist beliefs of the populace (the vast majority of Cambodians practice Therāvada Buddhism), the high levels of respect felt for Buddhist monks and nuns (photo left—credit), and the existing network of monasteries and nunneries. While the work of the ECCC is important and deserves international support, a broader response to the massive crimes of the Khmer Rouge is merited.

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