Peace vs Justice as Elite Politics / by Simmon Li

On Cambodia, Social Transformation, and Democratization

[Ed. This paper was submitted as a case study on the use of transitional justice in Cambodia. The paper took a look at how the mechanism in Cambodia was implemented, its problems, and impacts on society.]

The case of transitional justice in Cambodia is one that presents a rich opportunity for study and interrogation. Cambodia has engaged in a process of transitional justice that has been unsatisfactory on measures of both micro and macro reconciliation. This paper will examine the Extraordinary Chambers in the Courts of Cambodia (EC) with an eye towards explaining why the Cambodian mechanism of transitional justice remains incomplete, and further, this paper will argue that there is hope that reconciliation can be attained through alternative means of transitional justice that remain unexplored at the level of political elites. In this regard, the mechanisms that were selected by the state of Cambodia remain woefully inadequate to bring about reconciliation. The hope lies in the process of social transformation in which the democratization of the politics of peace vs. justice yields a less stringent dichotomy of categories, enabling a bottom-up approach to justice and reconciliation.

The process of transitional justice in Cambodia was initiated several times between the Royal Cambodian Government and the United Nations. The history of this negotiation reflects the tenuous context in which the EC is situated. Negotiations began in 1997 when the co-prime ministers of Cambodia sent a joint appeal to the UN for assistance in addressing the atrocities committed by the Khmer Rouge (Etcheson, 2006). The UN tabled a plan which was negotiated with the Cambodian government until a stand-still over disagreements in 1999. At this point, the United States, along with other interested parties, attempted to mediate those differences and restart the process of establishing a tribunal mechanism. The disagreement was fundamentally tied to issues of national sovereignty and how much control over the courts the Cambodian government would exert (Etcheson, 2006). The international community saw this insistence by the Cambodian government as a type of political interference in the process of rule of law that threatened the very goal of the project’s political goal: consolidation of the rule of law (Ciorciari, 2011). This gap was eventually bridged and sent for ratification in the Cambodian parliaments, which ended with another standstill, as the act that the Cambodian government ratified was not the same one the UN was expecting to be ratified (Etcheson, 2006). In the end, the UN bowed to international pressure and proceeded with the Cambodian government’s version of the EC with stipulation that it could choose to pull its support if things did not proceed according to the UN’s standards of due process (Etcheson, 2006).

After situating the pact in this political and historical context, the content of the final agreement itself becomes easier to understand. The pact negotiated a state endorsed mechanism of retributive justice that would be situated within the Cambodian domestic court system. The UN envisioned a two-tier court system that had an international majority, initially favouring having trials outside of Cambodia. The Cambodian government pushed for a domestically situated process with three tiers. This court, however, would have the help and support of the international community through special joint judges and prosecutors. Having international legal personnel assist in this court was a major goal of the UN after the push to have a completely international process was taken off the table. The pact itself stipulated many conditions for the appointment of judges, prosecutors, and many of the administrative details. All in all, the agreement put the EC under a majority jurisdiction of the Cambodian judiciary (United Nations, 2003). The political objectives behind both the international community’s insistence on an international process, and the Cambodian pushback can explain why the negotiations were so tenuous. As numerous academics mention, hybrid courts provide an opportunity for the international community to engage in capacity building and help to strengthen the rule of law and consolidate democratic institutions (Skinnider, 2007; Ciorciari, 2011). Thus, the EC as currently constituted, can be seen as a political compromise between the UN’s normative standard of judicial proceedings and Cambodia’s vision of judicial proceedings (Reiger, 2006).

Given the political context in which the EC was negotiated and implemented, its realization has many potential benefits. However, it is also clear that the EC, as constituted, came with several deficiencies as a result of political concessions by the UN and other interested parties (PoKempner, 2006). What is interesting is that the transitional justice seems to be out of place. As PoKempner (2006) puts it, “[Cambodia] is an odd case in the lexicon of ‘transitional justice,’ as the country has experienced relatively little of either political transition or justice.” However, the pact itself is hotly debated within the realm of transitional justice scholarship. The unusual nature of the EC in the transitional justice lexicon is illustrated by the analysis of the potential of the EC.

Arguably, the hybrid tribunal format gives developing judiciaries in transitional states some firsthand experience with the foundations of the rule of law: procedural integrity, fairness, and judicial independence. These aspects of international legal standards were so important that they were written into the agreement itself, and further, the UN reserved the right, in Article 28 of the agreement, to rescind its support should it feel that the EC was not administered according to international legal standards (United Nations, 2003). The UN’s participation was heavily incentivized by this function of serving as a model for the rule of law (Etcheson, 2006). Further, the very fact that justice is being taken seriously bodes well for Cambodia, even if that justice falls short. Instead of collective amnesia, an actual process of engagement with the EC will mean that people become aware that justice is possible, whether through the EC itself, or through alternative means championed by civil society.

There are, however, deficiencies that come with the political concessions. The mandate of the court has served to limit its ability to deliver retributive justice in the fullest means possible. Article 1 of the agreement states the scope of the court in terms of persons who are covered, the laws that will be used, and the temporal jurisdiction (Skinnider, 2007).Among other things, the agreement limits the persons covered by the law to the “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations” (United Nations, 2003). The intent of this limited personal jurisdiction seems to be to limit the trials to those most high-profile members of the regime, thus immunizing many lower level perpetrators who, no doubt, contributed mightily to the brutality of the Khmer Rouge from prosecution (PoKempner 2006; Bari 2011).This result is not surprising when one considers the culture of impunity and the loss of memory surrounding Cambodian experiences of the Khmer Rouge (Stansell, 2005; Marks, 1994). This culture of impunity is connected directly to members of the current sitting government that had some involvement with the KR in a lower capacity (Heder, 2006). Through limiting the scope of jurisdiction, the political costs of the EC’s proceedings can be contained by the sitting government (Heder, 2006). This limited scope of persons impacts the other two dimensions of scope, first the temporal, and second, the relevant laws (PoKempner, 2006). The temporal scope of the EC, similarly, remains tightly on the period of Khmer Rouge’s power. While the time line seems reasonable, it excludes, as Bari (2011) points out, those that “assisted the Khmer Rouge in coming to power and supported them after they were overthrown by the Vietnamese”. The limited temporal jurisdiction, taken with the limited personal jurisdiction of the EC, severely limits the scope of the court and it becomes questionable as to whether or not the EC can be successful in rendering justice (Reiger, 2006). Because of the limited mandate of the court, the culture of impunity surrounding the suspects and people that are eligible to be tried is apparently reinforced (Tek, 2011). The limited scope of the court represents a major problem for the legitimacy and prestige of the court (Bari, 2011). This problem is further compounded by the political situatedness of the EC and the relationship the Cambodian executive has with the judiciary.

The politicization of the bench is another deficiency that the EC must deal with. Part of the politicization is structural in nature, while other aspects, as Bari (2011) points out, are more overtly political. Structurally speaking, the court’s balance of judges remains a Cambodian majority ratio in all chambers of the court, with the stipulation of a super-majority for any decisions to pass. This problematic arrangement is compounded by the three-tier system. The structure of the EC would be reasonable if Cambodian courts didn’t have a history of interference by the executive branch. Linton (2006) points out the numerous ways in which the Cambodian judiciary needs to be strengthened to ensure a truly independent and impartial bench. Corruption within the judiciary remains a large problem and is especially worrying for the EC (Bari 2011; Linton 2006). The problem is further compounded by the fact that the judges appointed by the Cambodian government do not go through any vetting process by the UN, while internationally selected judges must go through the Cambodian government in a vetting process (Bari, 2011). Further complicating the matter, the judges that have been appointed to the EC by the Cambodian government have had a history of non-independence (Bari, 2011). Here, it becomes possible to see how a structural arrangement in the court has led to the politicization of the bench. Further, Bari (2011) points out instances of political interference with the proceedings when government members refused to be called to the stand. This politicization of the EC challenges the legitimacy and moral authority of the court. For example, the question of legitimacy is at the heart of the controversy over the ruling in Case 001 (the Duch case). Being the first that the court tackled, the verdict in Case 001 was a term of imprisonment for 19 years (Ciorciari, 2010). As Bari (2011) masterfully points out, drug dealers in Cambodia are sentenced to life imprisonment.  Understandably, this was not what victims were hoping for, and the case was appealed. The Trial Chambers tried to maintain a sense of fairness by starting with a benchmark 40 years as suggested by the prosecutors and discounting for the time Duch was held by the Military Court before the EC’s existence, however, the crisis of legitimacy ultimately led to an appeal (Bari, 2011; Ciorciari, 2010). Upon appeal, the Supreme Chamber entered a life sentence by laying additional charges of crimes against humanity, and addressed the matter of civil reparations (Summary of Appeal Judgement, 2012). The politics of justice remain hugely important to the Cambodian public (Ciorciari, 2010; Bari, 2011). The Supreme Chamber’s overturning of the Trial Chamber’s result seemed to better reflect the will of the Cambodian public and their desire to see perpetrators brought to justice. While the deficiencies are serous, the EC represents a negotiated political settlement on both the Cambodian side and the international side.

The trade-offs of the adopted pact can be framed easily in the language of peace vs. justice. For the Cambodian government, the decision to pursue exclusively the mechanism of retributive justice was framed as a step forward, a step that would allow the country to attain justice which is tempered by peace (An, 2006). The concessions to “peace, political stability, and national unity” have resulted in a reconciliation process that does not speak to the broader Cambodian population (An, 2006; McGrew, 2006). For the international community, the acceptance of the peace vs. justice debate reflected a deeper reality: that the international community failed to act during this crisis (An, 2006; Marks, 1994). While this framing of the debate of justice in Cambodia is certainly understandable, one must question who’s interest a peace vs. justice dichotomy serves. Given the deficiencies of the retributive mechanism in the Cambodian context and the limited mandate of the EC to begin with, it is not hard to see that the category of peace, as existentially opposed to justice, is born of an elite politics. Here, however, we also have the more personal appeals to peace and justice from people. It would not be fair to dismiss the peace vs. justice debate without considering the fact that, in Cambodia in particular, there are struggles of peace vs. justice that play out in personal and collective memories which impact prospects of micro-reconciliation (Ciorciari, 2011; Poeuv, 2006; Saray, 2006). This dual application of the peace vs. justice dichotomy illustrates the ultimate trade-off that the creation of the EC at the expense of other transitional justice mechanisms (particularly conciliatory and restorative) has made: the process of justice has been hijacked by elite politics at the expense of Cambodians at large. In this, it is clear that a fuller picture—concilatory justice—will never be attained with the insistence on a purely retributive process (McGrew, 2006; McGrew, 2011). Upon consideration, it is not surprising that the pact focuses exclusively on one mechanism of transitional justice. Peace vs. justice as elite politics naturally led the singular focus on retributive justice with a limited mandate (United Nations, 2003). During the negotiation phase between the UN and the Cambodia government, a panel of experts had recommended that alternative methods of transitional justice be considered concurrently to the retributive mechanism (Etcheson, 2006). The contention by the Cambodian government was that, whatever the result, a retributive mechanism on its own will serve enough justice as the situation must be tempered by peace (An, 2006). This notion was reinforced by the creation of the EC to Cambodian standards. The question of international responsibility continues to be evaded (Cook & Gong, 2011). However, as the EC has developed, a hybrid model of mostly retributive with some restorative justice principles has emerged as it became clear that there was a need for alternative modes of justice to accompany the retributive model of justice (McGonigle, 2009). We shall see that, in lacking endorsed modes of justice outside of the retributive model, the EC fails to fully address the needs of Cambodian society, pushing the burden of alternative mechanism to NGOs and civil society groups (McGrew, 2011). While this model of moving forward may be an attempt to shoehorn restorative measures into a primarily retributive process, it is clear that true reconciliation will necessarily involve the state taking responsibility by providing a fuller account of justice through concurrent models (McGonigle, 2009). Here again, it serves well to recall the international community’s responsibility to Cambodia in delivering reconciliation (Cook & Gong, 2011).

For all the negativity that the EC has drawn from the academic and professional writers over the course of its existence, the best measure of the EC’s success will pertain to real gains and shifts demonstrated in the Cambodian private and public memory and discourse. For all of the failures of the EC, tangible changes in the political and social geography of the Cambodian public will serve as the catalyst for a more accountable and democratic politics of peace and justice. Through the project of outreach and awareness, it may become possible to democratize the elite politics of peace vs. justice and transform them into a politics of peace and justice (Ciorciari, 2011). There are two primary impacts along the dimension of memory, and a tertiary impact as a result of the re-writing of memory. First, private memory becomes rewritten to include the past that the Khmer Rouge inhabits. This is a very important shift that affects the socio-political fabric on which collective memory is etched (Marks, 1994; Poeuv, 2006). Finally, as a result of this changing socio-political fabric, real progress on addressing the culture of impunity can be made through discourse.

Regardless of the modes of justice by which reconciliation is being pursued, an important part of reconciliation still happens at the human and community level (Halpern & Weinstein, 2004; Ciorciari, 2011). This micro-reconciliation is the domain of personal memory. On the one hand, the impact of the EC’s retributive process has been a sense of failure (Pham, et al., 2011). Due to the narrow scope of the EC, focusing on civil parties and individuals, personal memory is not a major factor in analyzing the impact of the EC itself. However, the social and political context in which the EC finds itself impacts directly on Cambodians. More than anything, the conciliatory effects of the EC have forced people to confront their own personal histories as they intersect with the Khmer Rouge experience (McGonigle, 2009; Stansell, 2005). As the trials press on, the hope is that more people will engage with the past in a personal manner and contribute to the richness of collective memory (An, 2006).

While the confrontation of the past is an important function of the EC, its retributive process has left little room for Cambodians to seek alternative means of justice (Saray, 2006). The EC, instead of focusing on a holistic micro and macro process of reconciliation, has chosen to focus on macro reconciliation (Ciorciari, 2010; Tek, 2011). While this may be a deficiency, it also points towards a positive impact on collective memory being made by the EC. For example, Tek (2011) points out that the EC has been effective in bringing some conciliatory justice to the fore, citing interviews that suggest that the EC’s process has been able to bring about some macro-reconciliation: “it [EC] brings back some pain because so many people died and the trials are needed because so many people died that they need to put the perpetrators on trial.” Even considering the limited “two-for-one” nature of the EC, the impacts on collective memory are undeniable (Saray, 2006; Poeuv, 2006). The civil parties involved in Case 001 put forward some measures of commemorative justice that reflect the profound shifting of collective memory away from amnesia to that of remembrance (Ciorciari, 2010). While the court points out that it is unable to ensure that these measures of justice are enacted, it does recommend them (Summary of Appeal Judgement, 2012; Ciorciari, 2010). The EC’s coming into being, primarily a process of elite politics, has resulted in the democratization of the peace vs. justice debate (Ciorciari, 2011). The result of this process has been to change the trajectory of collective memory for the better (Poeuv, 2006).

The rewriting of both private and collective memory serves to reconfigure the social and political fabric on which the culture of impunity for the Khmer Rouge era rests (Marks, 1994). The democratization of peace and justice as categories is, effectively, a people powered push against impunity. The EC’s creation has resulted in a large shift in acceptable discourse, tied with broader conceptions of what the Khmer Rouge means for Cambodian solidarity (Ciorciari, 2011). In this regard, the EC, while failing to utilize all the tools of transitional justice to bring about reconciliation, has raised the issue as one that must be addressed by collective memory. The young in Cambodia are often at odds with this approach to the Khmer Rouge era, often preferring to “bury the past” and move on (An, 2006; Stansell, 2005; Poeuv, 2006). But even this acknowledgement of the past speaks to a larger shift in the trajectory of impunity. While it will be impossible to remove the politics of peace and justice from any state sponsored initiative for reconciliation, a bottom-up approach to matters of justice may yield the best opportunity for reconciliation through justice and peace. The EC’s current process does very little to address the trauma of the Khmer Rouge period, focusing on macro-reconciliation at the expense of micro-reconciliation. In this regard, the hybrid “two for one” model seems to be less effective than two concurrent and mutually beneficial processes, especially if one considers that the role of civil parties has been curtailed in Case 002 (McGonigle, 2009; Ciorciari, 2010). It is clear that a true reconciliation depends on micro and macro reconciliation (Ciorciari, 2011). As the time for effective retributive justice runs close to its end, it is even more urgent for Cambodians, both privately and collectively, to engage with the history of the Khmer and employ alternative means of justice (Bari, 2011).  Indeed, the EC, by measures of justice served, has been a dismal failure (Ciorciari, 2011). The value of the EC, and its success, however, must be measured against the status quo that prevailed before the EC existed (Tek, 2011). For all its blemishes, the process surrounding the EC has served as a conciliatory kind of justice. Perpetrators are being brought to justice. The matter of how effectively the EC functions in this regard is hard to gauge from the point of private and collective memory, but it is easy to point to the slow reversal of the culture of impunity (McGrew, 2011). As awareness grows, so too, do calls for justice.

As PoKempner (2006) alludes to, the case of Cambodia remains an enigma. Transitional justice, while certainly having positive effects in Cambodia, remains woefully inadequate for reconciliation at both the micro and macro levels (Ciorciari, 2011). Given that the EC’s creation and its limited mandate can be seen the consequence of an elite politics of peace vs. justice, the question of whether a democratic government would better pursue reconciliation looms. In the case of Cambodia, the hope of reconciliation rests on a political transition towards a deeper democracy (Drèze & Sen, 2002). Can the failures of the EC be attributed, in part, to the lack of political transition? Certainly, this paper has attempted to argue that a process of deepening democracy would enable the EC to better serve justice that the Cambodian people deserve. This is especially relevant when one considers the political interference with the trails at hand (Bari, 2011). Would a deeper democracy serve to stem these kinds of interventions by the government? Almost certainly, a democratic government would be much more accountable and responsive to calls for justice and reconciliation.

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