Lessons from the Khmer Rouge tribunal
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Lessons from the Khmer Rouge tribunal

One of the saddest episodes of Southeast Asian history was the period during the 1970s that witnessed the rule of the Khmer Rouge in Cambodia. The group was driven by a warped ideology, and it perpetrated myriad crimes against the general population. Millions were killed and displaced through a range of atrocities. Decades later, an internationally supported tribunal, the Extraordinary Chambers in the Courts of Cambodia (ECCC), or the Khmer Rouge Tribunal, was set up to prosecute the leaders of the group, and it is now ending its work. What are some of the key lessons the global community can learn from this?

The ECCC was created in 2001 by a special agreement between Cambodia and the UN. It is a kind of hybrid court blending international law with Cambodian law covering the brutal reign of the Khmer Rouge in the 1970s and has a mixed judicial bench with Cambodian and foreign or international judges. Its mandate was to address the egregious crimes relating to Khmer Rouge leaders and senior personnel. While it is generally known that three persons have been convicted, of whom only one is still alive and now serving a life sentence in the country, it is important to emphasise that a key role of the ECCC has been to counter the impunity of Khmer Rouge-related personnel. This is a qualitative rather than a quantitative issue.

The tribunal has played an important role in clarifying the content of international crimes, in particular genocide, war crimes ("grave breaches of the 1949 Geneva Conventions") and crimes against humanity. The notion of genocide is based on various specifics that must be proven, in particular, the specific intention to harm a particular group in regard to key violations.

Interestingly, the findings of the tribunal on the issue of genocide relate to various minorities (namely, Chams and Vietnamese) rather than in regard to the general Cambodian population. The customary nature of crimes against humanity is also referred to. War crimes and crimes against humanity listed by the tribunal include murder, extermination, torture, forced transfer of the population and enforced disappearances.

The issue of sexual violence is also covered by the deliberations of the tribunal. Importantly, its castigation of forced marriage, forced consummation, and rape helps to expand the coverage of crimes against humanity and strengthen international law and activities to counter violence against women and children. The gender issue also opens the door to respecting diversity.

Access by victims to the ECCC has been pivotal in expanding access to justice for a wide range of people affected by Khmer Rouge-related crimes, including those belonging to the Cambodian diaspora. The tribunal has concretised the participation and representation of the victims throughout the judicial proceedings, especially via the practice of "Civil Parties" whereby a broad range of victims are assisted in accessing the ECCC, also with a supportive counsel.

While it was clear from the beginning there would not be reparations for individuals in the form of individualised redress, the collective nature of reparations under the tribunal has been pathbreaking. The components of these reparations include the public registering and listing of names of victims, a public record and acknowledgement of apologies by those accused of crimes, and development-related programmes and assistance to promote the rehabilitation of victims and related education and documentation activities.

A key added value has been the documentation of the history of that era in the hundreds of pages of the tribunal's judgements and related entries. The work of the ECCC offers a corroborated history of Cambodia, critically important as a record of the past with a view to the future. Prospectively, it has a preventive impact against potential misinformation and disinformation, which may deviate from that historical narrative.

The proceedings of the tribunal also set an example for the Cambodian judicial system as a whole. Importantly, there is no death penalty. Cambodia can also be an example for other countries in the Asean region to discard the death penalty.

On another front, more than 300,000 people have watched and learned from the Khmer Rouge trials, offering a significant educational process to both local and international communities. The records of the tribunal and its judgements will be an important tool for education and socialisation in Cambodia and beyond.

In December 2021, the UN and the Cambodian authorities agreed on an addendum to provide for residual functions of the ECCC, such as on victim/survivor support and assistance, on completion of the judicial proceedings. The stage is thus set to promote the effective implementation of this agreement. It remains open to debate whether the ECCC could have dealt with other charges of a serious nature concerning Khmer Rouge personnel to enable more prosecutions to take place with resultant judgements.

Yet, the tensions between international prosecutors, investigative judges and national officials, coupled with administrative and financial difficulties, are a testament to the challenges facing the hybrid nature of the tribunal and various political and other influences surrounding its functions, a cautionary precedent for other tribunals.

In this transitional phase and beyond, it is essential to preserve well for posterity the key documents pertaining to the tribunal. This should cover not only the cases that have led to judgements by the ECCC, but also other cases that have been discontinued or dismissed. It is incumbent upon the international community and the authorities in the country to use the lessons learned from the substance, procedures, administration and related experiences of the tribunal to nurture an intergenerational understanding of Cambodian history.

This invites the proactive preservation, collation and dissemination of that information through modern technology and digital access, as well as through more traditional forms of communication. The forward-looking mission will thus enable the open discussion of key issues interlinked with the history of peace, human rights, democracy and the development of this important country, with the potential to catalyse and prepare well for the future.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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