Field mission reports - Transitional Justice in Cambodia by Alex Bates

Executive summary

• The complex historical, political, cultural and social contexts make any accountability for the crimes of the Khmer Rouge extremely challenging.
• The Agreement between the UN and the Royal Cambodian Government and the resulting Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) was from the outset a compromise solution.
• One of the most challenging aspects is the political environment within which the ECCC operates: domestically, Cambodia suffers from an underfunded and underdeveloped criminal justice system; there is little domestic respect for the rule of law; and corruption is prevalent in all areas of public life.
• It is unsurprising that these influences have tainted the court’s operation, reputation and credibility. Cambodian Government political interference threatens to compromise the integrity and independence of prosecutorial and judicial independence.
• The internal structure of the court is complex, with a dual administrative system operated by the United Nations and the Royal Government of Cambodia respectively.
• The judicial offices are similarly split – safeguards to prevent tactical voting or the blocking of prosecutions or investigations have only been partially successful.
• The lack of a Registrar or Court President has compromised the effective functioning of the ECCC.
• The ECCC’s civil law procedure has not been fully understood by all parties. There has been conflict between staff from a civil and those from a common law tradition.
• The funding of the tribunal by voluntary donations creates uncertainty and insecurity. Adequate and available funding should be the minimum acceptable standard.
• The ECCC is likely to be one of the most expensive experiments of transitional justice ever, with the cost per indictee particularly high.
• Notwithstanding the rhetoric of capacity building, it is unlikely that there will be any significant impact upon the domestic legal system given the lack of political will to improve it.
• The first public trial was concluded successfully and according to appropriate international fair-trial standards. Observers considered that victim participation, although far from straightforward, added a meaningful dimension to the trial.
• The Trial Chamber delivered a significant decision on the first accused’s unlawful pre-trial detention by the Cambodian authorities – it remains to be seen if these principles will be argued in domestic courts.
• There are considerable benefits from having the ECCC situated within Cambodia: it is more accessible to the affected population; victim participation at the tribunal has the potential to contribute to reconciliation; it has stimulated a nationwide inter-generational dialogue about the Khmer Rouge regime; and the population has begun to learn about its recent history.
• Victim participation through Civil Party status has been hailed as groundbreaking at the ECCC. In reality, problems of still-developing procedure, insufficient funding, planning and Outreach have compromised the full exercise of rights of participation. The sheer number of potential victims for case file 002 has required a radical re-think of representation and it remains to be seen how this will operate.
• Although the ECCC is a mechanism of retributive justice, the importance of coordinating the parallel restorative initiatives of civil society is critical to the success of the court.
• The legacy of the ECCC is now being addressed - it is hoped that this will be carefully considered well before 2015 when the tribunal is currently scheduled to close.

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