Home Law Transitional Justice in the Asia-Pacific
It is difficult to know how to conclude, in part because ECCC proceedings are ongoing, but also because there is so little hope in the story of transitional justice in Cambodia. Amnesty for lower-level perpetrators helped to attract KR deserters to the side of the Cambodian government (which brought some level of stability, but at a high price, given the allegations of government corruption just detailed) and there have been small successes at the ECCC - the most significant of which are the completion of Case 001 and the progress made in Case 002. It remains a possibility that the existence of the ECCC will inspire reform in the Cambodian judiciary - currently heavily dependent upon the government for patronage and protection, widely seen as untrustworthy and corrupt and often poorly qualified.
It does seem clear, however, that the Cambodian case does not support the findings of recent studies that ‘prosecutions may deter human rights violations by increasing the perception of the possibility of costs of repression for individual state officials’ and that ‘transitional justice overall has a positive effect on the change in human rights and democracy measures’. Rather than its leaders feeling vulnerable to prosecution or being socialised into observing human rights and democracy norms, Cambodia seems to be regressing in its human rights record. Kheang finds that ‘[s]ince 2003, Cambodia has evolved into hegemonic party authoritarianism wherein the minimum criteria for democracy - freedom of expression, freedom of assembly - have been seriously curtailed while periodic elections have been maintained.’ With respect to human rights measures, based on PHYSINT data which uses a range of zero to indicate no government respect for physical integrity and eight to indicate full respect, Cambodia shows a significant decline from a score of five in 2002 to two in 2007. In line with the discussion above, Kheang notes that the international community has ‘settled on granting the Cambodian government its international legitimacy based on economic performance and political stability’ rather than on its observance of international norms.
The willingness of the international community to overlook the present government’s disregard of human rights standards coupled with the success of interested parties in limiting the temporal and personal jurisdiction of the ECCC so severely, means that far from signalling an end to impunity in Cambodia, the ECCC has demonstrated the power of the ruling elite to limit the administration of justice to those it seeks to delegitimise.
Of course no institution will be perfect - certainly not one run in an unsettled political climate, with authority split between national and (often uncoordinated) international actors. But what we are seeing in Cambodia is not bureaucratic incompetence or the best available option (which will inevitably reflect the existing power hierarchy to some extent), but complicity in impunity. It might be argued that Cambodia would be worse off without the ECCC than with it, and there is no way to prove that this is not the case. It might also be argued that Cambodia would be better off with a fully international tribunal than a hybrid model, though this was never a political possibility. But to end the discussion with either argument is to renege on the responsibility that theorists of transitional justice have to imagine better options and think of creative ways to hold more actors more thoroughly to account. It may be that criminal accountability is impossible to achieve for many of those most instrumental in the suffering of Cambodians, but criminal mechanisms do not exhaust the possibilities for accountability. Legal and political mechanisms such as inquiries and commissions at the international level may be appropriate to try to capture the broader responsibilities alluded to above and to generate sufficient shame to deter actors from repeating their behaviour in future. Certainly, those seeking to judge the ECCC should avoid accepting its limited scope and judging its successes and failures within that scope, as to do so is to miss the bigger picture, and effectively to offer impunity to many who do not deserve it. The Cambodian civil war lasted at least from 1968, when the KR launched an armed struggle against the Cambodian government, until their final collapse in 1998 - it is this that the people are transitioning from and deserve justice for, not a conflict that ended thirty years ago. And even though the civil war has ended, the repression remains. The existence of the ECCC does not seem to be stemming human rights violations in Cambodia, and is more likely instead to be bolstering the power of a government that has been allowed to control the court by external actors who cannot generate the political will to defend the rule of law.
Accountability efforts for the Cambodian genocide have fallen victim to a process in which peace was prioritised over justice, and national interest (on the part of Cambodia and an array of international actors) was prioritised over both. Leaving aside the question of whether this can be justified, it means the ECCC is in many ways a charade of accountability that does not meet the expressed needs of many of the victims of the past or the citizens of the present. It is an accountability mechanism over which many of those who should be asked to account for their actions have power. It is in the interests both of Hun Sen and the international community to limit accountability to a relatively small number of individuals. Yet it is quite probably in the interests of Cambodian victims, and all those people who may be caught up in civil strife in Cambodia in the future, for a much wider range of actors to be held accountable. This will not happen, leaving the ECCC responsible for achieving an impoverished form of justice, which is better than nothing, but not by much.
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