Friday, January 30, 2009

Empiricizing Transitional Justice

The Human Rights Center at UC Berkeley released this month "a population-based survey on attitudes about social reconciliation and the Extraordinary Chambers in the Courts of Cambodia" entitled So We Will Never Forget. Of the several surveys of the Cambodian public on accountability for the Khmer Rouge that have been completed in the past decade (including one by yours truly), this is the most scientifically planned and executed, with rigorous methodology and a wide sampling of the Cambodian population.
There's much of interest in this report for those participating in accountability efforts. First, the report underscores the need for a serious public education effort around the tribunal. Of the respondents who did not live under the Khmer Rouge regime, 81% described their knowledge of that period as poor or very poor. Given that 68% of Cambodia's population has been born since the Khmer Rouge left power, that's a very concerning statistic. Moreover, 39% of those surveyed had no knowledge of the Extraordinary Chambers and 46% had only limited knowledge. The court and non-governmental organizations have a great deal of headway to make in educating the Cambodian public about the ECCC and the Khmer Rouge era.
Second, the survey results question the appropriateness of trials as the sole accountability mechanism in Cambodia. While 86% of those surveyed believed that it was necessary to establish the truth about what happened under the Khmer Rouge regime, 45% of respondents said they didn't know which mechanisms would be appropriate to do so, and only 14% recommended trials. On the other hand, 9 out of 10 respondents believed it important to hold accountable those responsible for the atrocities of the Khmer Rouge regime, and almost 50% said that perpetrators should be put on trial. This disparity may reflect the difficulty of designing survey questions, particularly in cross-cultural contexts, that are not leading. On the other hand, it may illustrate a perceived distinction between truth and accountability, in which case it would have been useful to know which goal the respondents valued more given limited resources. Were truth the priority, a truth commission or other mechanism that can paint a broader picture of history might have been a better choice than trials.
Finally, the report queries the priorities of the international community and the Cambodian government in allocating so many resources (currently an estimated $135.4 million through the end of 2010) to the Extraordinary Chambers rather than to social reconstruction. Only 1% of those surveyed listed justice as a priority while 83% listed jobs as a priority. Interestingly, the importance of justice grew as survey respondents were focused on the ECCC. Only 76% of Cambodians said it was more important to focus on problems faced in their daily lives than to address the crimes of the Khmer Rouge, and just 53% would rather spend the money on something other than the ECCC. In any case, that's still a majority of respondents who think the funding for the Extraordinary Chambers would have been better spent elsewhere.
Despite its possible flaws, this quantitative study is of great value in assessing and directing transitional justice mechanisms in Cambodia. If transitional justice is to be responsive to the needs of local populations, rather than a top-down mandate from the international community, such studies should be undertaken as a matter of course, preferably before selecting and designing accountability mechanisms and allocating limited resources.

Cross-posted on Concurring Opinions.

1 comment:

Patrick S. O'Donnell said...

Jaya,

I'm wondering if the distinction between transitional justice and criminal justice is being unconcsiously elided here. Was the original purpose of the ECCC conceived of as a vehicle of "transitional justice" or is that a conception others have brought to the table?

From the ECCC's website we read:

"In 2001 the Cambodian National Assembly passed a law to create a court to try serious crimes committed during the Khmer Rouge regime 1975-1979. This court is called the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (Extraordinary Chambers or ECCC).

The government of Cambodia insisted that, for the sake of the Cambodian people, the trial must be held in Cambodia using Cambodian staff and judges together with foreign personnel. Cambodia invited international participation due to the weakness of the Cambodian legal system and the international nature of the crimes, and to help in meeting international standards of justice. An agreement with the UN was ultimately reached in June 2003 detailing how the international community will assist and participate in the Extraordinary Chambers.

This special new court was created by the government and the UN but it will be independent of them. It is a Cambodian court with international participation that will apply international standards. It will provide a new role model for court operations in Cambodia."

This appears to make clear that the purpose of the ECCC is first and foremost about the endeavor to meet international criminal standards of justice and not, at least in the first instance, about transitional justice as such, however much that may be a by-product or spillover effect of such an attempt. And I don't want to claim that there is no overlap whatsoever between criminal justice and transitional justice.

And I would think one would not at all be surprised by the bulk of the survey results, given the slaughter of "intellectuals" and so many others by Pol Pot's regime and the lingering effects of war on the country, not to mention a state with only the barest of democratic institutions and a fragile national government, indeed, all the factors that make for conditions of transitional justice.

In any case, we do need to ask ourselves if the ECCC is simply about "being responsive to the needs of local populations," and I suspect the answer is that that is not its intended design or purpose, at least with regard to criminal culpability and justice.

I'm not at all against developing the means and methods, let alone clearly articulating the principles and purposes, of transitional justice, but it seems we should maintain a distinction between (international) criminal justice and law, on the one hand, and transitional justice, on the other.

In short, I think we should not be critical (explicitly or implicitly) of the failure or shortcomings of the ECCC with regard to transitional justice goals when those goals (however urgent or worthy) are, strictly speaking, outside its mandate.

[cross-posted at CO]