Victims are Cambodians, the criminals are Cambodians, and the crimes were committed on Cambodian soil!
This was the justification given by the Cambodian Government under Hun Sen to establish the Cambodian Khmer Rouge Tribunal (KRT) formally known as the Extraordinary Chambers in the Courts of Cambodia (ECCC) – a hybrid Cambodian-International Court in conjunction with the International Community in 2006 under the Cambodian law to try leaders most responsible for perpetrating gross violations of human rights during the Pol Pot and Khmer Rouge period from 1975 to 1978. However, even before the establishment of the Tribunal, the members of the International Community in the panel was reduced in compliance with the request made by Cambodia at the UN General Assembly moreover with its implementation the Tribunal witnessed an increased political interference diluting the whole process. Thus the success of any such program will depend on the commitments and cooperation from the Government
Compromise made over justice for Peace and Reconciliation and its worth
With its 16 years of work in the country, the court is now coming to close with sentencing just three of the perpetrators for life imprisonment – despite the heavy investments made by external actors and of the struggles and the criticisms faced, as a result of adhering to the Cambodian Government’s request pointing to a renewed civil war within the country- destabilizing peace, economic growth, social order, and political stability, if the court moved ahead with its trials.
Thus, there was a dilemma on how to balance the prospective and retrospective justice, most importantly the Tribunal has been a setback to scholars of Transitional Justice, who believed to achieve through the TJ mechanism, a strengthened rule of law, democratic transition, and fair and transparent political institutions that victims can trust, instead, the court helped in legitimizing the authoritarian regime. The failure was more associated with the political compromise allowed to be made respecting the sovereignty, thereby allowing the government to choose how to deal with its violent past, while the critics point out “whether there had been a better option”.
However citing the Cambodian case study, questions have been raised against the scholars who preferred the ‘maximalist approach’ emphasizing the justice, on whether it had been possible and was practical to carry out the trials for all perpetrators or for the criminals who conducted the gravest crime, to stop the elite from securing impunity, strengthen the democracy or to serve as a model contributing to a strong independent judicial system. Critics also pointed out the heavy expenditure incurred, pointless testimonies and documentaries submitted as evidence, against victim’s testimony censorship, and on the accessibility of the court system to the poor. Debates also brought in the need to consider the time factor for retributive justice, pointing the consequences associated with the delay made in taking action (by the time court decided to sentence criminals for life long sentences, they were suffering from old age diseases, and even some of the victims were suffering from amnesia).
Cambodian Dilemma and questions raised against Transitional Justice
The Cambodian case brought in new dilemmas for retributive justice supporters with the ‘Karmic justice’ belief by the victims, pointing out how cultural barriers can affect the Westernized Transitional Justice mechanisms and asking to what extent does Transitional Justice appear as ‘savior’ for the victims of Khmer regime and against the TJ’s employing of particular tool-kit without understanding society and of expecting the local populations to fit into their prescribed template and finally against the voices that speak for or represent the victim’s demands. The whole idea of the hybrid court thus gets questioned with Cambodians different understanding of justice. This understanding has also questioned whether the justice had contributed to reconciliation (which some scholars consider as complementary strands of peace-building), through the reparations, forgiveness, and apologies for historical injustices made to repair the relationships between victims and perpetrators.
Different voices have been raised- some claiming reconciliation remains elusive with many of the members involved in the violence still serving in the Government, thus questioning the Government’s legitimacy and on the interest of the International actors to entrust them to carry out the TJ mechanism, and against the resistance of some International actors and the Government to dig into the past and on fixing the time frame for transitional justice actors to look into, critics also points out the emotionless and insincere apology made by the perpetrators which revictimized the victims and on giving amnesty to perpetrators purely on regimes interest and finally on classifying the perpetrators as poor thus not allowing the victims to claim reparation.
However, on a positive note, this partial retributive justice, empowered the victims after receiving acknowledgment from the Government, besides it paved the way for the current Cambodian generation to understand their past and gave voice to the victims by allowing them to share their stories. Above all, it helped construct history about the forgotten and erased atrocities done by the Khmer regime from school curriculums and minds of the larger public and finally contributed to the rise of civil society organizations, and helped preserve the crime sites, pressured authorities to construct the museums and library, and in fixing a national commemoration day. All these efforts have helped prevent relapsing into violence to date, thus behind the criticisms, this genuine accomplishment shouldn’t be ignored. It is now important to not let all these efforts go in vain, to not be a passive observer for the marginalization and disempowerment of victims to take place, to not let the society have a faded or distorted version of history. The Memories must be kept alive through all generations, the sites, rituals, ceremonies, must be preserved. Most of all, the victims must be provided with platforms to express their traumatic experience and it must be ensured that the regime doesn’t engage in acts that hurt the sentiments of the victims and the dead must be honored. Thus a culture that respects human rights can help in achieving sustainable peace and reconciliation and gradually reduce the mistrust between the State and the victims and help in healing the past trauma and restore the dignity of the victims.
Moreover, it must be made clear to the regime that this retributive justice is the only first step to achieve reconciliation. Through the civil society the local reconciliation, documentation of victim’s concerns, and peace-building efforts must be supported. At the same time, it should also be ensured that these efforts get acknowledged at the national level. Further, the underlying causes of the conflict must be studied in detail, and failures from Cambodia should be taken as a reference by Transitional Justice scholars. Most importantly the concentration must shift to root causes through critical ethnographic studies, understanding how the cultural barriers can affect the Transitional justice mechanism and by taking note of the immediate needs of the victims ( the economic, social, and cultural rights), thus gradually helping the victims to integrate into the mainstream society. Failure to do so can make society relapse into violence moreover criticisms will arise against the external actor’s intervention and interest to create a stable market society.