Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia by John D. Ciorciari & Anne Heindel (review)

I. INTRODUCTION

This title is published in the University of Michigan Press series “Law, Meaning, and Violence.” John D. Ciorciari and Anne Heindel are lawyers who are well–positioned to write about the Extraordinary Chambers in the Courts of Cambodia, a special court set up by Cambodia and the United Nations, to try senior figures of the former Khmer Rouge government of Cambodia.

Ciorciari and Heindel both have extensive experience in Cambodia as advisors to the Documentation Center of Cambodia, which collects data on human rights violations committed in Cambodia during the period of Khmer Rouge rule, 1975 to 1979. Both authors have written extensively on legal and contextual aspects of the work of the Chambers.

The Chambers are established as a court of Cambodia, but with international participation and a mandate to prosecute not only under Cambodian penal law, but for internationally defined offenses. The Chambers’ jurisdiction is limited to prosecuting senior Khmer Rouge figures only, and only for acts dating from the period of Khmer Rouge rule. The authors’ focus, as the title suggests, is the character of the Chambers as “hybrid.” At all key levels, personnel from inside and outside Cambodia share functions. They are appointed by a Cambodian institution that oversees judicial appointments, but the “outside” judges are first nominated by the Secretary-General of the United Nations.

From the outset, the Chambers have been plagued by controversy. The Chambers encountered administrative issues and were accused of political bias. They have been accused of failing to prosecute persons thought to be deserving of such a fate. They have been criticized for prosecuting for offenses that may not exist in the law. Ciorciari and Heindel provide a credible and readable account of the rocky road to justice in Cambodia as they analyze the Chambers. The presence of the outsiders was designed to counterbalance any political pressure that might be exerted on the Cambodian personnel. The authors recount difficulties the Chambers have experienced in achieving that counterbalance. They recount instances of pressure from the government of Cambodia and financial shenanigans in the disbursement of Chamber funds.

The picture the authors paint of the Chambers is far from pretty. The inclusion of both international and local functionaries in the investigative and judicial arms has led to stalemates that have made it difficult for the Chambers to function. Decisions as to which persons to charge became highly politicized. Political pressure, they recount, was brought to bear to keep the Chambers from prosecuting more than a handful of senior Khmer Rouge figures. A mechanism for victims to participate as civil parties, originally hailed as a major innovation to give voice to victims, proved barely workable in practice, as it made already cumbersome proceedings even more difficult to manage. Achieving perfect justice in the wake of major atrocities in a country is probably not possible, regardless of what mechanism is created. The justice achieved by the Chambers, as the authors relate, has been far from perfect.

The authors cite extensively to UN documents. They do so accurately and with citations that one can readily access on the database available on the UN website. This is a major strong point in their book. A reader can check original documents. The documentation of the Chambers themselves is available on a well–maintained website. After explaining the origin of the Chambers, the authors devote chapters to the cases the Chambers have heard. Case 001 was the now-completed trial of Kaing Guek Eav, also known as “Duch,” who ran Tuol Sleng, a prison in Phnom Penh. Case 002 was the trial, not yet completed, of top-level Khmer Rouge leadership figures. Cases 003 and 004 were to involve prosecution of Khmer Rouge figures at a less senior level, but those cases are presently stalled short of a trial.

The authors provide a history of the formation of the Chambers. The United...