The Extraordinary Chambers in the Courts of Cambodia (ECCC) is a hybrid tribunal in more than one sense. Operating on the outskirts of Phnom Penh, the ECCC is tasked with putting on trial the ageing leaders of the Democratic Kampuchea regime that controlled Cambodia from 17 April 1975 to 6 January 1979. Most straightforwardly, it is a hybrid tribunal as it has jurisdiction over both domestic and international law, and features both local and foreign judicial staff. As the name suggests, it is located in the Cambodian system but established by a national law and an international agreement between the Cambodian government and the United Nations (UN). This hybrid nature is not just about how the ECCC is structured. It is evident in the combination of rhetorical importance placed on procedure and the ease with which procedural realities are discarded when they are inconvenient. It is also evident in the combination of the illiberal Cambodian government and the liberalising expectations placed on these types of trials.
The ECCC is an example of what is known as transitional justice: the institutional responses to the legacy of human rights violations and mass atrocity crimes. It is a term, and a field of scholarship, born of democratising processes of the late 1980s and early 1990s. Ideas of transitional justice continue to be deeply influenced by this original context. The literature is permeated with assumptions that liberal democracy is the natural end state of a transition and that transitional justice is a tool to arrive at that destination, although these assumptions are rarely acknowledged explicitly. These assumptions obscure the varied possible transitions and the broad range of impacts transitional justice can have, neither of which are necessarily linked to liberal democracy.
My approach in this research is to use the case of Cambodia to propose a new understanding of transitional justice that allows space to consider these hybridities and discords as a central element of certain types of transitional justice mechanisms. I ask how and why the ECCC was created. I look backwards to the precedents of how the Cambodian government has approached the legacy of the Khmer Rouge regime before the ECCC. And I look forward from the creation of the ECCC to its operation and the implications it has for understanding why the court was created. In doing so, I use the example of Cambodia and the ECCC to pose questions about transitional justice and to challenge the prevailing liberal assumptions within that literature. In response to the problems the ECCC highlights within the field of transitional justice, I propose to label it an example of illiberal transitional justice, which combines the appearance of adherence to liberal values with the reality of government control.
Contextualising the ECCC
The Khmer Rouge took control of Phnom Penh on 17 April 1975 and swiftly began to empty the city. Urban residents were forced into rural collectives as part of the communist reimagining of the country. In the subsequent 3 years, 8 months, and 20 days, 1.7 million people died through a combination of execution, torture, overwork, disease, and starvation.1 The highly paranoid Khmer Rouge leadership instituted broad purges amongst its own ranks. It was ex-Khmer Rouge members who had fled these purges, with the military support of the Vietnamese army, who overthrew the Khmer Rouge in early 1979.
Works that discuss the ECCC provide at least a cursory description of the Khmer Rouge. The same is true of any transitional justice mechanism; an understanding of the nature of the crimes committed informs discussions of the response to them. Yet so often, there is a temporal hole in the narrative about transitional justice. The period of mass atrocities or human rights violations is covered, and then the narrative jumps to either the creation or the operation of the transitional justice mechanism itself. In some countries, there may be very little gap between the commission of crimes and redress for them. In others, it could be decades. In the case of transitional justice-based discussions of Cambodia and the ECCC, the narrative will often jump from the 1979 overthrow of the Khmer Rouge to either 1997 when the Cambodian government requested UN assistance to conduct a trial or the 2006 establishment of the ECCC. The context in which the ECCC was negotiated, established, and now operates cannot be understood without a consideration of events from 1979 to the 1990s. When decisions of space are made, at least in the case of Cambodia, transitional justice scholars prioritise the periods of international engagement. Accordingly, the 1980s when Cambodia was internationally isolated from all but the Soviet bloc are often missing from stories of the ECCC. This is not to say that there is no significant scholarship on Cambodia during this time, but that it is rarely framed in terms of transitional justice.
The post-Khmer Rouge Vietnamese-backed government, the Peopleās Republic of Kampuchea (PRK), instituted two transitional justice mechanisms in the years after it took power. The first, the Peopleās Revolutionary Tribunal (PRT), found Khmer Rouge leader Pol Pot and his foreign minister Ieng Sary guilty of genocide and sentenced them to death in absentia in 1979. The second mechanism is known as the Renakse petitions; Cambodians wrote narrative statements about harms suffered during the Khmer Rouge regime and expressed their support for the new government. Although it was labelled a historical research commission at the time, the process also had elements that resembled a truth commission. Neither has been labelled a ātransitional justice mechanismā in the literature; the term did not exist at the time and has not been retroactively applied. Scholars have generally dismissed both mechanisms because the mechanisms did not adequately disguise their political purposes and were instituted by a government that was not internationally recognised at the time. Although not acknowledged as transitional justice mechanisms, they are important precedents to the ECCC and show how the government has positioned itself in relation to the Khmer Rouge past.
The UN mission of the early 1990s allowed Cambodiaās rehabilitation as a member of the international community. It marked major changes, including the end of international acceptance of the Khmer Rouge and an influx of aid for the country. But much remained the same: the government of the 1980s reconstituted itself as the Cambodian Peopleās Party (CPP), and, despite not winning the election, it managed to hold on to most state power. The UN had been tasked with separating the CPP from the state bureaucracy but had failed to do so. The process of the election was accepted as free and fair but the actual substantive outcome reflected existing power balances more than it did the election results. This election outcome went on to shape how the UN and the Cambodian government interacted about a tribunal. Crucially, the government had learnt that legitimacy could be maintained with minimal risk to actual power as long as rules and procedures appeared to be observed.
These patterns were then replicated or built upon in the creation and operation of the ECCC. The model of the ECCC was constructed over six years of negotiations between the Cambodian government and the UN Secretariat, with occasional interventions from foreign government officials. I detail and analyse these negotiations in Chap. 3. The negotiation period was primarily characterised by a competition for control over the conduct and outcome a court would have. Each side (and it is telling that the Cambodian government and the UN can be considered sides of a dispute in this context) wanted the judges they appointed to be in the majority and hence to shape the outcomes of the ECCC. The Cambodian government was able to push for a hybrid model with an unprecedented domestic majority. The resulting structure is unlikely to be repeated anywhere else, both because it emerged from a specific geopolitical context and because the experience in Cambodia means the UN is unlikely to agree to a similar model in the future.
The ECCC
The ECCC was established with a mandate of ābringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979ā.2 The structure of the court and much of its operation were laid out in an agreement between the UN and the Cambodian government and in a domestic Cambodian law establishing the ECCC. Aspects of how the ECCC would operate were then clarified or created by the internal rules, which were negotiated by international and Cambodian judges over the course of nearly a year. Both the judicial and administrative functions of the court are split amongst Cambodian and international staff.
The ECCC consists of three Chambers: Pre-Trial, Trial, and Supreme Court. The Pre-Trial and Trial Chambers each comprise five judges, three Cambodian and two international judges, and the Supreme Court Chamber comprises seven judges, four Cambodian and three international judges. The president of each chamber is a Cambodian judge. In an attempt to balance the power of the international and national judges, a supermajority voting rule was instituted. A decision of the Pre-Trial or Trial Chambers requires the vote of four out of five judges, and of the Supreme Court Chamber five out of seven judges, which ensures each decision is made with the assent of at least one international judge.
There are co-prosecutors, one Cambodian and one international, and similarly two co-investigating judges. The co-investigating judgesāa role present in the Cambodian legal system, which is based on the French modelāare tasked with investigating the submissions made by the co-prosecutors in an impartial manner and deciding whether the suspects fall within the personal and subject matter jurisdiction of the court and, then, whether the person should be indicted and sent to trial or whether the case should be dismissed. If there is a dispute between the co-prosecutors or the co-investigating judges about how to proceed, the Pre-Trial Chamber adjudicates. A supermajority vote is required to block an action (such as an investigation), and therefore the default assumption is that the action will proceed when the national and international prosecutors or investigating judges disagree. Although resolving these disputes was the original reason for the Pre-Trial Chamberās creation, it has evolved to deal with a range of issues concerning defendantsā or victimsā rights before a case moves to trial. The administration of the court is also split in a similar, although less prescribed, manner; there is a Cambodian director of administration and an international deputy director.
The intricacies and innovations that went into structuring the ECCC indicate that its architects were attempting to create a precise balance of international and domestic control. Mechanisms and rules were put in place to govern how power would operate at the tribunal. That such measures were necessary, and to such a degree, indicates an absence of confidence on the part of both the UN Secretariat and the Cambodian government that they were dealing with good-faith partners. Both sides knew that they had different ideas about how such a trial should operate and what would be the most desirable outcomes.
Further details about how the ECCC would operate were negotiated as part of the internal rules. Although the agreement with the UN set out tha...