Extraordinary or Expected? Evaluating the Results of the Khmer Rouge Tribunal Twenty Years Later

By: Kelly McClintock

People are talking about Cambodia again, and it’s not just the indie-film lovers and critics. September 15, Netflix will premiere Angelina Jolie’s First They Killed My Father; a true story of one child surviving the terrors of Pol Pot’s infamous Khmer Rouge regime.[1] Coincidentally, it is also twenty years since the formation of the Khmer Rouge Tribunal that was established to hold senior leaders and “those who were most responsible” for “serious” violations of international law.[2] The Cambodian has announced the tribunal’s work is complete, after securing three convictions.[3] This decision by the Cambodian government, led by Hun Sen who has ruled as Prime Minister since 1997, has been met international criticism and condemnation. But, as I read the New York Times and Times magazine exposés slamming the international tribunal’s attempts to administer justice, I questioned the authority of these opinions.[4] Can the success or failure of an international criminal war tribunal be measured as a quantifiable result? What about qualitative results?  

Success can be relative, so it is helpful to understand Cambodian history when considering the Khmer Rouge Tribunal. In 1997, a new, post-civil war Cambodian government reached out the United States and the United Nations for assistance in helping to hold those accountable for crimes against humanity including genocide, torture, forced labor, and starvation.[5] This request evoked long-term negotiations that eventually resulted in the establishment of the Extraordinary Chambers in the Courts of Cambodia, a hybrid international criminal tribunal.[6] This unique model of administering international justice represented somewhat of a compromise between sovereign-protectionist interests of the Cambodian government and the gold-seal approval the UN sought to impart upon the tribunal.[7] Operations would not begin until 2006, nine years after efforts to establish the court began in 1997.[8]

To date, the Extraordinary Chambers in the Courts of Cambodia (ECCC) has tried two cases, leading to three convictions.[9] And that will be all. The government insists the atrocities have been addressed, reparations made, and that further indictments might lead to another civil war.[10]

Civil war ravaged the Oklahoma-sized country for nearly two decades, from 1979 to 1996, following the Khmer Rouge’s tortuous regime, which lasted from 1975 to 1979.[11] During the four years of “ruthless carnage and deranged agrarian pursuits, at least 1.7 million Cambodians were killed, either by starvation, execution, torture, or exhaustion from labor in one of the country’s concentration camps.”[12]

Notice the chronology of these events: investigations did not commence until some thirty years after the crimes were committed. The ECCC only prosecuted senior leaders and those most responsible for crimes against humanity, keeping the list of potential defendants intentionally small.[13] Of this select group, two have died awaiting sentencing.[14] Pol Pot mysteriously died in 1998, just as efforts began to establish a legitimate international court of law to prosecute him.[15]

They say timing is everything. Certainly the long delay between the commission of crimes and prosecution of crimes did not make the ECCC’s task any easier. Nonetheless, mainstream American media and scholars seem far from impressed with the ECCC’s results. The results apparently reflect the cynical expectations many outside experts predicted. Even supposedly-independent NGOs such as The Open Society Foundation and Human Rights Watch (HRW) cannot give the Tribunal a nod of approval. HRW issued a statement one day after the most recent convictions calling them, “too little and too late.”[16]  A report conducted by The Open Society Foundation offered the most optimistic evaluation of the ECCC, stating, the “results are decidedly mixed.”[17]

But one scholar, who has written extensively about development ECCC from its infancy, believes the Chambers of Cambodia were extraordinary.[18] As special rapporteur for the UN for almost twenty years, Scheffer helped steer negotiations during most trying times.[19] Sure, maybe Scheffer hold some bias, but his perspective certainly matters. And Scheffer is not alone in emphasizing the “social perspective” and influence that the court wielded over Cambodian culture and society. Another scholar writes:

Despite the fact that the ECCC has failed to live up to international fair trial standards in certain areas, it should nonetheless be considered a ―success in terms of the far-reaching impacts it has had on Cambodian society. In particular, the ECCC is a success in its contributions to creating a common history, capacity building within the Cambodian judiciary, inspiring Cambodians’ confidence in their domestic judicial system, public outreach, and the involvement of victims and civil parties in the proceedings. These successes ultimately outweigh any procedural shortcomings.[20]

Some journalists look to post-war tribunals in Rwanda and the former Yugoslavia as points of comparison to Cambodia. The ECCC has produced three convictions in about ten years, costing $300 million.  The Rwandan trials lasted twenty years, produced sixty-one sentences and fourteen acquittals, and cost between $1 billion and $2 billion; the tribunal for the former Yugoslavia currently nears completion after twenty-three years, with a record of eighty-three convictions and nineteen acquittals and a price tag of more than $2 billion.[21] Obviously, these successes outnumber Cambodia’s three convictions. But I still question if there can truly be a universal standard that defines post-war reconciliation and justice? According to Ambassador Scheffer:

165,407 people, almost all being Cambodian citizens from throughout the country, have witnessed the trials in person.  That number exceeds the total number of spectators for the Nuremberg and Tokyo military tribunals after World War II, the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Special Tribunal for Lebanon, and the International Criminal Court, combined.

Cambodian children now lean about the genocide committed by the Khmer Rouge; this historical topic was not covered in schools until 2009, just a few years after the ECCC began formal investigations.[22] How does one factor the culture, structure, and instruction that stayed right in Phenom Pen? Unlike the ICTY Tribunal, whose trial took place at The Hague, Cambodia hosted each trial and Cambodian defense attorneys, prosecutors, and judges took part in adjudicating the trials alongside their international counterparts. These types of strides cannot be splintered and measured individually; their worth depends on the bundle of actions.

Considering these opposing perspectives on the ECCC, I think it’s safe to say the final verdict on whether the ECCC was a success or failure remains debate-able. But, I am a glass half-full kind of girl, and I believe that the value of the ECCC and its legacy in Cambodia is priceless.

[1] Eric Kohn, ‘First They Killed My Father’ Review: Angelina Jolie’s Cambodian Drama Is Her Best Film, Indie Wire, Sept. 7, 2017, http://www.indiewire.com/2017/09/first-they-killed-my-father-review-angelina-jolie-netflix-telluride-1201872312/.

[2] Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, art. 1, Oct. 27 2004, available at https://www.uni-marburg.de/icwc/dateien/lawestablishmentkrt.pdf [hereinafter ECCC Statute].

[3] Ambassador David Scheffer, U.N. Sec’y-Gen.’s Special Expert of U.N. Assistance to the Khmer Rouge Trials, Speech at William & Mary Law School (Feb. 25, 2015). “The Co-Prosecutors have stated publicly that there will be no further cases after Cases 003 and 004, a point publicly and formally reiterated by the International Co-Prosecutor recently.  The existing caseload thus represents the totality of the caseload to be addressed by the Extraordinary Chambers.”

[4] Seth Mydans, 11 Years, $300 Million and 3 Convictions. Was the Khmer Rouge Tribunal Worth It? N.Y. Times, Apr. 10, 2017, https://www.nytimes.com/2017/04/10/world/asia/cambodia-khmer-rouge-united-nations-tribunal.html; Charlie Campbell, Cambodia’s Khmer Rouge Trials Are a Shocking Failure, TIME, Feb. 13, 2014, http://time.com/6997/cambodias-khmer-rouge-trials-are-a-shocking-failure/.

[5] David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in 3 INTERNATIONAL CRIMINAL LAW: INTERNATIONAL ENFORCEMENT 219, 222-22 (M. Cherif Bassiouni ed. 3rd ed. 2008).

[6] Frank Dame, Article, The Effect of International Criminal Tribunals on Local Judicial Culture: The Superiority of The Hybrid Tribunal, 24 Mich. St. J. Int'l L. 213, 249-51 (2015).

[7] Scheffer, supra note 5, at 220.

[8] Ambassador David Scheffer, U.N. Sec’y-Gen.’s Special Expert of U.N. Assistance to the Khmer Rouge Trials, Speech at William & Mary Law School (Feb. 25, 2015).

[9] Mydans, supra note 4.

[10] Id.

[11] Id.

[12] Dame, supra note 6, at 250.

[13] Mydans, supra note 4.

[14] Id.

[15] Id.

[16] Human Rights Watch, Cambodia: Khmer Rouge Convictions ‘Too Little, Too Late,’ Aug. 8, 2014, https://www.hrw.org/news/2014/08/08/cambodia-khmer-rouge-convictions-too-little-too-late.

[17] Open Society Foundations, Performance and Perception: The Impact of the Extraordinary Chambers in the Courts of Cambodia 11 (2016), https://www.opensocietyfoundations.org/sites/default/files/performance-perception-ecc-20160211.pdf.

[18] Ambassador Scheffer, Speech at William & Mary Law School, supra note 3.

[19] Scheffer, supra note 5, at 220.

[20] Scully, Seeta, Judging the Successes and Failures of the Extraordinary Chambers of the Courts of Cambodia, 13 Asian-Pacific L. & Pol. J. 1, 301 (2011).

[21] Mydans, supra note 4.

[22] Tom Fawthorp, Cambodia's Khmer Rouge Tribunal: Mission Accomplished? The Diplomat, July 17, 2017, http://thediplomat.com/2017/07/cambodias-khmer-rouge-tribunal-mission-accomplished/.