“Extraordinary” is an apt way to describe the Khmer Rouge Tribunal, formally known as the Extraordinary Chambers in the Courts of Cambodia [ECCC]. Beyond its original intent to illustrate the Tribunal's status as an ad hoc appendage grafted onto the Cambodian court system, the term has been stretched in practice to describe various additional qualities, including the Tribunal's hybrid nature, as well as—ironically—its key shortcomings. Most glaring among these is the long-standing suggestion of the Cambodian government's interference in its affairs.
The shadow of political interference looms large over the ECCC, inter alia encompassing influence over its majority-Cambodian judges and its Cambodian prosecutors, all of whom seem informally required to be ruling party members; the institution of a kickback scheme from national staff to government officials; and the government's steadfast objection to the Tribunal prosecuting mid-level Khmer Rouge military and political leaders in Cases 003 and 004.
To their credit, this is addressed upfront in Simon Meisenberg and Ignaz Stegmiller's edited volume, The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law. While the majority of the book's authors detail the numerous, often-technical and narrow ways in which the Tribunal has positively affected the development of substantive and procedural international criminal law, the first third of the book is devoted to a frank assessment of the ECCC's history, establishment, judicial independence, and legacy. Multiple contributors examine numerous allegations of political interference from a policy and jurisprudential perspective. Most agree that the Tribunal simultaneously enjoys a unique opportunity to counter political interference and bolster Cambodian rule of law through a demonstration effect, yet risks undermining its own legacy should it fail to do so.
As it happens, the Tribunal is indeed struggling to rise to this challenge, given that, since the book was published, the political context in which the ECCC is situated has deteriorated sharply. The tipping point, in November 2017, was the Supreme Court of Cambodia's decision to outlaw Cambodia's main opposition party ahead of the national elections in July 2018. This tenuously reasoned decision epitomizes the significant backslide in Cambodian rule of law. It also represents an indirect undermining of the ECCC's legacy, since several of its national judges adjudicated it and the case was led by the ECCC National Co-Prosecutor. Amid a climate of increased restrictions on independent media, civil society, and fundamental freedoms, the ruling Cambodian People's Party—itself led by several former Khmer Rouge leaders—unsurprisingly won the election in a landslide widely seen as far from free and fair.
The situation is prompting broader reflections over the effectiveness of the UN's wider project in Cambodia, the UN's first attempt at direct involvement in the running of a post-conflict country. In such a politically charged context, it is unclear whether the final assessment of the impact of the ECCC will be a positive one.
For sociologist Peter Manning, the politicization of the ECCC is not merely predictable but an inevitable condition of its birth within its particular political environment and, after all, at the express request of the Cambodian government. As he argues in his new book Transitional Justice and Memory in Cambodia: Beyond the Extraordinary Chambers, the ECCC was always going to be a political institution, an obvious fact that has been obscured by the dominant but false perception of transitional justice initiatives as apolitical. Moreover, Manning suggests that a complete analysis of the impact of transitional justice in Cambodia requires the adoption of a broader perspective. While international transitional justice and memorialization efforts have coalesced into a rigid set of norms regarding the appropriate institutional and policy solutions to be deployed within a post-conflict society, these do not reflect reality.
Instead, Manning demonstrates through the example of Cambodia how transitional justice in fact encompasses a broader and more complex range of activities. Societal change within a post-conflict context is neither a linear journey from conflict to peace neatly achieved through the rendering of a legal judgment endorsing an official narrative of national trauma, nor delivered only through a paternalistic top-down approach in which the population is reduced merely to victims awaiting delivery of justice through that avenue.
In reality, victims are agents who, as Manning details, actively transform their relationship with memories of past trauma in different and often creative ways. To maximize their effectiveness and sustainability, Manning argues that transitional justice and memory needs to recognize this and be rethought entirely. This requires shifting away from a singular focus on a central transitional justice mechanism such as the ECCC; recognizing the inherent and deep politicization of transitional justice; and recognition of the complexity of relationships and roles that exist in post-conflict societies vis-à-vis memories of past trauma.
Both Binxin Zhang and Ignaz Stegmiller, in individual chapters in Meisenberg and Stegmiller's edited volume, echo Manning's assessment that the ECCC—a core transitional justice mechanism offering legal justice within a limited scope—can only ever offer incomplete justice to victims. At the same time, however, they rightly recognize that nevertheless, one of the ways in which the Tribunal is distinguishable is in the role it offers to those victims. Victims of atrocity crimes are vested with considerable agency at the ECCC. Through the Tribunal's civil party participation regime, victims take part in the proceedings as full parties with a key role in examining and presenting evidence.
Few other international criminal tribunals afford victims’ roles such prominence. The two other current primary examples are the Special Tribunal for Lebanon [STL], which examines events surrounding the 2005 assassination of former Lebanese prime minister Rafik Hariri, and the International Criminal Court [ICC]. Accordingly, the recent edited volume from Kinga Tibori-Szabó and Megan Hirst, Victim Participation in International Justice: Practitioners’ Guide, focuses on the models of victim participation offered by each of these three tribunals.
Like Meisenberg and Stegmiller's volume, Tibori-Szabó and Hirst's forms part of the International Criminal Justice Series edited by Gerhard Werle, Lovell Fernandez, and Moritz Vormbaum and published by T.M.C. Asser Press. However, whereas Meisenberg and Stegmiller's volume offers a reflective assessment of the ECCC's performance and legacy, Tibori-Szabó and Hirst's presents a true practitioner's guide. Its contributors—all seasoned practitioners and academics who have worked with victims at international tribunals—explain the process of victims’ participation at each of the tribunals. Each chapter sets out a step in that process in a linear, comprehensive, and neutral way, from the applications process through to hearings, testimony, appeals, and reparations. Living up to its name, the book indeed offers a practical ready-reference manual for the unfamiliar practitioner assisting a victim to participate in proceedings at either the ECCC, STL, or ICC, although given its straightforward language and structure, it would also be useful to non-legal practitioners.
Tibori-Szabó and Hirst note, in their “Introduction”, the nascent nature of victim participation before international tribunals. They also highlight how even the ECCC, STL, and ICC limit victim participation in important ways, most of all by circumscribing their ability to influence prosecutors’ selection of which cases to pursue. Nevertheless, even if it should indeed be recognized that transitional justice must look beyond core, legal forms of justice and consider other parallel avenues for the advancement of peace and reconciliation, the very publication of Tibori-Szabó and Hirst's volume is equally a recognition of the increased prominence, and agency, afforded to victims within those core, legal forms of justice currently offered.