The Extraordinary Chambers in the Courts of Cambodia (ECCC) is finally beginning
operations, after years of uncertainty. The legacy of the ECCC needs to be planned
now, and must be centered on making the ECCC accessible to and meaningful for Cambodians.
Although ECCC staff recognize the importance of leaving a positive legacy, they are
now very busy with details of the start-up phase, and their skeleton staff must prioritize
other more urgent tasks. There is not yet a strategic plan that considers issues
related to legacy. A clear exit strategy which is planned now, could help ensure
that positive legacy is embedded into the structure of the ECCC.
A recent visit of Robin Vincent, the former Registrar (Director of Administration)
of the Special Courts for Sierra Leone emphasized the need to strive for a positive
legacy as he said repeatedly: "the ECCC should belong to the people of Cambodia
- and that thus the ECCC should leave something behind for the children of Cambodia
-a footprint in the sand." He reinforced the need to establish criteria for
evaluation (or benchmarks) as the ECCC proceeds - and that these should be based
on the needs of the Cambodian people.
There are several ways in which the ECCC could leave a positive legacy:
Promoting the Rule of Law and Decreasing Impunity - As mentioned in an Open Society
Justice Initiative letter to the Group of Interested States of August 2005, the EC
"could spark demand for - and demonstrate the possibility of - needed reform
of Cambodia's legal institutions and practices, and other accountability mechanisms".
In various surveys, Cambodians explained they felt it was important to prosecute
past violations of human rights, so that current leaders would not act with impunity.
However, more study is needed to see how these issues of rule and law and impunity
can best be addressed - an ECCC "Legacy Officer" would spearhead such study
Physical - Physical improvement of the ECCC court facilities, including design for
security measures, sensitive treatment of victims and witnesses, detention and forensic
facilities, evidence rooms, and interpretation, translation and hopefully transcription,
and other general issues such as efficiency and confidentiality. Coordination with
the other model court system set up in various Cambodians courts with the assistance
of the (Australian) Cambodian Criminal Justice Assistance Project and the Council
on Legal and Judicial Reform is very important.
Technical - Cambodian judges and other court personnel - prosecutors, investigators,
clerks, mental health workers, interpreters and translators administrative and financial
staff, etc, in principle, will learn new skills from their international counterparts.
The internationals can also learn from Cambodians. The mentoring process should be
planned in advance and included in job descriptions, neutral staff assessments and
continuing education plans to increase the possibility that skills and practices
will actually be improved.
Adequate funds need to be provided for training, including translation and interpretation
and other services such as printing and training costs. These costs are not included
within the ECCC budget and donors should already think about funding such requests.
However, a strong cautionary note must be added - the Cambodian courts have already
been the subject of much training and capacity building with little effect. Ways
need to be found to optimize skills gained by also improving the larger rule of law,
in particular finding ways to reduce the influence of the executive on the judiciary,
and also to look at ways to deal with corruption.
Institutional - The hopes of many Cambodians to move towards a rule of law, with
fair, independent and just functioning of the courts, the Supreme Council of the
Magistracy, the Constitutional Council, the Bar Association and even the security
(and investigation) services, must be specifically addressed in the planning stages
of the ECCC.
As job descriptions, organizational diagrams, codes of conducts, and swearing-in
oaths are developed for the ECCC, they can help improve other Cambodian institutions.
Staff recruitment could also serve as a model if done under international standards.
Databases and court management systems can serve as models for Cambodian courts.
Other indirect institutional development can occur through positive effects on media,
mental health services, translation and interpretation services and other areas.
As new procedures are developed for the ECCC, such as rules of procedure and evidence,
detention standards, they can be incorporated into new laws and procedures.
Reconciliation - Links between truth, justice and reconciliation are not clear in
other international or hybrid court experiences, nor agreed upon by experts. However
in various surveys the majority of Cambodians have expressed their desire to increase
their knowledge of the "truth" to know "why Cambodians killed Cambodians."
The quest for the truth about the past, as well as acknowledgment of the past crimes
is clearly part of reconciliation. The ECCC, if successful, can help develop a clearer
view of history, and a broader view of the "truth."
But how can the legacy of the ECCC be optimized? First of all, the Cambodian government,
the ECCC, and its international backers must make a firm commitment at these early
stages. The NGOs working on the ECCC as well as on related issues such as legal development,
outreach, mental health and others, should develop plans to improve the legacy of
their work around the ECCC. Central to leaving a positive legacy is an early and
effective outreach program to reduce false expectations, to share information and
to find out the concerns and issues important to Cambodians. All those involved must
work together, coordinate and keep the primary beneficiaries in mind - the Cambodian
Although the ECCC is now well on its way, and appears on track, it could still get
derailed. In such a case, a positive legacy can still occur, if the court and others
are able to learn as the court has progressed. In order to optimize legacy even in
this scenario, time and budgets should be allowed to appoint a Legacy Officer, or
to assign the duties of planning for legacy with a particular staff person, and for
all staff to write frequent progress reports, including legacy issues and lessons
learned, even if the ECCC were to end.
* Laura McGrew was the Project Coordinator for the Open Society Justice Initiative's
Project providing Support and Monitoring of the ECCC from 2004-2005.