An historic experiment in securing justice-both as moral concept and legal reality-is
now taking place in the Kingdom of Cambodia, and soon the world, if only for a moment,
will be watching.
After nearly a decade of complex, at times contentious, planning between the United
Nations and the Royal Government of Cambodia, the Extraordinary Chambers of the Courts
of Cambodia (ECCC) will now hold the first cases for the remaining senior leaders
of the Khmer Rouge by the end of this year.
The start of the Khmer Rouge trials represents the only serious attempt to provide
rightness and equity to the victims of atrocities at the hands of the ultra-Maoist
regime nearly 30 years ago. It also serves as the most recent administration of a
process of international law for mass atrocities that began more than fifty years
ago, with the World War II war crimes trials of Nuremberg and Tokyo, and led to the
formation of the International Criminal Court in 1991.
As James Goldston, executive director of the Open Justice Initiative(OJI), wrote
in the 2006 edition of Justice Initiatives, "It is not yet known how the ECCC
will respond to the many demands of its varied constituents. But one thing is clear:
the ECCC's performance will have a major impact on both Cambodia and the future of
The ECCC has been shaped by judicial predecessors, but remains unique. It will be
the first tribunal to hear the testimony of victims, and has the shortest initial
mandate of three years. It's had the longest negotiation process prior to establishment
and is the first trial that will not be supported financially by the US. When compared
to other tribunals two other numbers stand out: the 27-year wait for justice is unprecedented;
and the estimated 1.7 million deaths is by far the largest.
"It's an honor, but it is humbling," said Robert Petit, who with Cambodian
Chea Leang will serve as co-prosecutors of the ECCC. "The sheer magnitude and
the iconic context make it even more important."
Dr Kelly Dawn Askin, OJI's senior legal officer on international justice, has written
that, despite the atrocities of the Khmer Rouge, there would be no prosecution of
the regime's leaders were it not for "a twist of fate in 1993 that changed the
course of history, challenging impunity for atrocity crimes."
The seminal move was the UN Security Council's formation of the International Criminal
Tribunal for the former Yugoslavia (ICTY) which lead to the establishment of a permanent
International Criminal Court (ICC). Askin argues that in the 1990s a culture of accountability
emerged and the push for the UN's agreement with the government for a KRT came from
In 1997 the Cambodian government requested international assistance in prosecuting
the Khmer Rouge. But since that plea the stop-start progress of the trial has led
to popular suspicion, low expectations and controversy.
Helen Jarvis, head of the press office at the ECCC, said that the time that has elapsed
since Pol Pot's regime exterminated more than one third of Cambodia's population,
has created a shroud of skepticism around the trial.
"There is a certain level of cynicism that justice will ever be achieved,"
she said. "It has been extremely difficult to make this happen. "Of course
the pressure is even greater now when the possibility of achieving justice is tantalizingly
close. People's expectations now are higher."
The legacy of war crimes tribunals is controversial, their accomplishments debatable.
Philip Short, author of Pol Pot: Anatomy of a Nightmare told the Post previously
that the KRT is "heavily symbolic and won't have much to do with justice."
As a deterrent for future crimes, international tribunals are unconvincing, said
John Quigley, author of The Genocide Convention: An International Law Analysis, in
a May 31 e-mail.
"Deterrence is a shaky doctrine even as applied to domestic criminal law. It
does not work perfectly in domestic criminal law, or there wouldn't be crime,"
"As for the international situations, it is unfortunately impossible to prove
one way or the other whether the trials that have been held since Nuremberg have
had any positive impact. The international tribunals may not enjoy as much respect
within the country concerned, as it may be viewed as a foreign imposition, staffed
by persons who do not understand the local situation".